Magistrate Judge Mary Pat Thynge recently recommended a denial of a defendant’s motion to amend its answer to add a counterclaim for inequitable conduct. Pfizer Inc. v. Sandoz Inc., C.A. No. 12-654-GMS/MPT (D. Del. Nov. 4, 2013). As Judge Thynge explained, “[i]n considering whether the grant the motion under Rule 15(a), the court considers . . . undue delay by the movant, unfair prejudice to the nonmovant, improper purpose and futility. The movant, however, must also satisfy the good cause requirement of Rule 16(b) by demonstrating that the amendment could not have been reasonably sought in a timely manner despite diligence.” Id. at 7-8.
With respect to the defendant’s six month delay in filing a motion to amend, Judge Thynge found that the “timing of defendant’s motion . . . strongly suggests the delay is improper. Defendant had the requisite documents in its possession, at the latest, within a few weeks of the deadline to amend pleadings. In addition, defendant delayed four months from the final deposition to file the present motion.” Id. at 10. Accordingly, Judge Thynge found undue delay for purposes of Rule 15(a). Judge Thynge added that there was no good cause for the delay under Rule 16(b), because all that the defendant provided was the “bare assertion” that the record was “tortuous” as justification for its delay. Id. at 10-11. Further, Judge Thynge found that amendment would be futile, because the proposed amended counterclaim did not meet Rule 9(b)’s pleading requirements for inequitable conduct. Finally, addressing the prejudice an amendment would cause the plaintiff, Judge Thynge explained that the prejudice “is the significantly compressed time frame for developing a response to the [inequitable conduct] allegations prior to trial, while defendant used approximately fourteen months to develop its inequitable conduct defense.” Id. at 12.