In a recent Order, Judge Gregory M. Sleet granted plaintiffs’ motion to dismiss defendants’ counterclaim for invalidity and to strike defendants’ fourth and fifth affirmative defenses with prejudice. Teva Pharmaceuticals USA, Inc. v. Forest Laboratories, Inc., C.A. No. 13-2002-GMS (D. Del. June 16, 2016). Plaintiffs argued that “the court should dismiss the counterclaims and new affirmative defenses for invalidity because defendants . . . failed to obtain leave from the court before significantly amending its answer.” Id. at 2 n.1. Plaintiffs asserted that “allowing these counterclaims and affirmative defenses nearly two years into the litigation and after fact discovery has closed would cause prejudice and substantially delay the adjudication of this case.” Defendants, on the other hand, argued that “because the Plaintiffs chose to expand the scope of litigation by adding Forest Pharma to the case more than six months after the deadline to join parties and amend the pleadings, Plaintiffs cannot complain when Forest Pharma asserts defenses in response to the new allegations against it.” Id.
Judge Sleet found that the parties’ dispute needed to be “analyzed through the lens of Federal Rule of Civil Procedure 15(a)(3).” Id. As Judge Sleet explained, the parties’ “contest[ed] whether an answer in response to an amended pleading requires leave from the court if it addresses issues outside of the scope of the amended complaint.” Id. Judge Sleet rejected defendants’ argument that “when the Plaintiffs added a new party, the Defendants were permitted to amend the complaint as a matter of course under Rule 15(a).” Id. at 3 n.1. Judge Sleet rather found that defendants failed to explain “why adding Forest Pharma—a wholly owned subsidiary of Forest Labs—expanded the scope of its defenses or claims.” Id. As Judge Sleet noted, “the two defendants brought the new claims jointly, and none of the new claims uniquely apply to the new defendant.” In sum, Judge Sleet was “not persuaded that adding Forest Pharma as a new defendant expanded the scope of this case.” Id.
Judge Sleet finally summarized the court’s analysis as follows:
In conclusion, this case is simply too close to trial to add completely new issues without prejudicing Plaintiffs and unduly delaying the litigation. Forest Labs had an opportunity to assert its Section 101 and 102 defenses and counterclaims in its initial answer to Plaintiffs’ complaint. Because Plaintiffs’ First Amended Complaint made no substantive changes other than adding Forest Pharma as a defendant, Defendants’ answer is rightly construed as an amended answer, for which Rule 15(a)(3) requires leave and Rule 16(b)(4) requires good cause. Because the counterclaims are dismissed as untimely, the court need not address whether they are plausibly pleaded.