Magistrate Judge Christopher Burke has issued a memorandum order in a patent infringement case referred to him for pretrial purposes by Chief Judge Gregory Sleet. Judge Burke considered and granted a motion by the plaintiff, filed on the deadline for amendment of pleadings, for leave to file a first amended complaint, adding a subsidiary of the existing defendant as an additional defendant. See Invensas Corp. v. Renesas Elecs. Corp., C.A. No. 11-448-GMS-CJB, Memorandum Order at 1 (D. Del. Apr. 24, 2013).
The parent-defendant, Renesas, argued that plaintiff had delayed in adding the subsidiary, REA. Judge Burke, however, agreed with plaintiffs that there had been no undue delay because “until very close to the deadline for amendment, there had not been a reason or motivation for it to seek to add REA . . . [because plaintiff] felt that it would be uncontested that any sales-related activity conducted by REA as to Renesas’ products in the United States would be activity attributable to Renesas.” Id. at 4-5. After Renesas appeared to assert “the legal theory that REA is a separate entity from Renesas, and that any sales-related activity of REA may not be attributed to its parent,” plaintiff claimed that it filed its motion “in an ‘abundance of caution’ and ‘to ensure that the proper Renesas entities are named in the action.’” In this situation, Judge Burke found that there was no undue delay in filing the motion. Id. at 5-6. Judge Burke also pointed out that “[t]he fact that the Motion was filed within [the] deadline [set by the Scheduling Order for the filing of proposed amendments to pleadings], one agreed to by both parties, strongly supports a conclusion that the amendment was not untimely filed (and, relatedly, that its filing will not work to unfairly prejudice Renesas).” Id. at 6-7.
Judge Burke further found that the risk of prejudice to defendants was minimal, as discovery was ongoing, no trial date had been set, the proposed amendment added no new theories of liability and added only a wholly owned subsidiary of an existing party which would be represented by the same outside counsel as its corporate parent. Under these circumstances, Judge Burke found, “it is reasonable to expect that REA can be integrated into the case without creating significant additional harm to the parties’ pre-trial preparations.” Id. at 7-8.