The plaintiff always wants to leave the door open. If they uncover new claims in discovery, they want to be able to add them in all the way up to trial. Defendants, of course, want to slam the door shut and wedge a dresser in front of it.
Whence Amendment?
The usual compromise is a deadline to amend the pleadings, which is included on all of our Judges' form scheduling orders. Interestingly, none of the orders specify when this deadline should fall, and in practice it varies widely. Looking at five recent orders I happen to have on hand, two had dates between the deadline for substantial completion and final contentions, and three had dates before the substantial completion deadline.
An Issue of Timing
It was the latter type of order that put the plaintiff in Tonal Systems, Inc. v. iFIT Inc., C.A. 20-1197-GBW-CJB, in a bit of a bind.
Judge Burke had dismissed their claims of pre-suit wilfulness and induced infringement for failing to plead the requisite knowledge and intent. Judge Stark had adopted that report and given them 3 weeks to amend to reassert the claims. As it happened, this was just a few days after the deadline to amend that the parties had agreed to in the scheduling order, and 5 months before the substantial completion deadline.
The plaintiff pretty much immediately started prodding the defendant to produce any documents related to the dismissed claims so they could replead them. The defendant, unsurprisingly, was in no particular hurry and refused to rush the production of this subset of documents, instead stating that it would comply with the relevant discovery deadlines in the scheduling order. Rather than wait to see what this discovery uncovered and moving for leave to amend, the plaintiff proactively moved to extend the deadline to amend the pleadings until "21 days from the date Tonal provides the Court notice of completion of their investigation and production of documents related to willfulness/inducement, or certifies that it has completed its search and that no documents were found." Id., D.I. 85.
A Mess Already Made
Judge Williams denied the motion, stating:
As iFIT notes, the Court must decide whether iFIT could not "reasonably meet the [C]ourt's deadlines despite its diligence." iFIT suggests that, since "the Court did not limit ... what [iFIT] could base its re-pleaded claims on[,]" iFIT had a right to use discovery to draft its amended complaint. First, pleading generally precedes discovery. [T]he parties' scheduling order, entered on December 15 , 2021, provided that "[d]ocument production shall be substantially complete by September 30, 2022 ." On March 30, 2022 the Court granted iFIT until April 21 to "file an amended complaint to replead 'pre-suit' induced and willful infringement claims." Thus, iFIT should have realized that the Court did not anticipate its use of discovery to draft its amended complaint. iFIT should also have realized, on or before April 7, 2022 that Tonal may not produce the documents that iFIT sought.
Tonal Systems, Inc. v. iFIT Inc., C.A. 20-1197-GBW-CJB, at 4 (D. Del. Oct. 24, 2022) (Mem. Order) (cleaned up)
I find this ruling interesting because, despite the lack of a clear standard for when the deadline to amend should fall, it's generally not a particularly contentious date in scheduling negotiations. This may be in part because a motion to amend can still be brought after the deadline if the movant shows "good cause" for the delay under Rule 16(b)(4). Indeed, it may well be that the result would have been different here if the plaintiff had waited to receive the discovery and then later moved to amend (as it happens, the Court did not rule on the motion to extend until after the substantial completion deadline had passed so it appears nothing was uncovered in any event). It remains a tactical point to keep in mind however, as it's always better to only have to meet the liberal standard for amendment under Rule 15.
If you enjoyed this post, consider subscribing to receive free e-mail updates about new posts.
