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Judge Burke recommends denial of motion to amend answer filed eight months after the deadline to amend pleadings

Magistrate Judge Christopher J. Burke recently issued a Report and Recommendation recommending denial of defendant Glenmark’s motion for leave to amend its Answer to plead equitable estoppel and laches.  GlaxoSmithKline LLC and Glenmark Pharmaceuticals Inc., USA, No. 14-877-LPS-CJB (D. Del. Dec. 15, 2016).  Glenmark filed its motion about eight months after the deadline to amend pleadings set forth in the Scheduling Order.  Id. at 2.  Judge Burke concluded that Glenmark did not have good cause to amend after this deadline because “Glenmark’s proposed defenses are based on facts that have existed (and have been known to the parties) for quite some time.” 4-5.  Judge Burke further noted that:

even if Glenmark’s failure to add these defenses by the February 15, 2016 deadline did not demonstrate a lack of diligence, its failure to do so over the next eight months surely does. In the interval, fact discovery closed, expert discovery began in earnest and the case moved much closer to trial. If new defenses were to be litigated in this matter, at a minimum, Glenmark should have moved to add them well before the filing of the instant motion.

Id. at 5-6.  Glenmark argued that good cause existed because it retained new counsel in September 2016, but Judge Burke disagreed noting that “new counsel’s entry into a case does not serve as a magic wand that enables the party to conjure up a showing of good cause.”  Id. at 6.

Glaxosmithkline LLC v. Glenmark Pharms. Inc., USA, No. 14-877-LPS-CJB (D. Del. Dec. 15, 2016)

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