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Judge Andrews clarifies “futility” in connection with motion to amend pleadings.

In a recent order, Judge Andrews rejected a plaintiff’s argument against amendment of an answer and counterclaims. XpertUniverse Inc. v. Cisco Systems Inc., C.A. No. 09-157-RGA (D. Del. July 27, 2012). The plaintiff had argued that “the amended portions of Cisco’s Proposed Answer and Counterclaims are unlikely to survive summary judgment. Thus, Cisco’s proposed amendment is futile…” (D.I. 236 at 8) The Court explained that even accepting the argument that the amended portions of the answer and counterclaims likely would not survive summary judgment, “it is not the same thing as stating that amendment would be futile. Thus, Plaintiff has advanced no valid argument against amendment.”


XpertUniverse Inc. v. Cisco Systems Inc., C.A. No. 09-157-RGA (D. Del. July 27, 2012).

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