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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE PARKER-HANNIFIN CORPORATION, Plaintiff, v. SEIREN CO., LTD., Defendant. ) ) ) ) ) ) ) ) )
C.A. No. 1:07-cv-104-***
PLAINTIFF PARKER-HANNIFIN CORPORATION'S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT Plaintiff Parker-Hannifin Corp. ("Parker"), through counsel, hereby moves the Court, pursuant to Fed.R.Civ.P. 15(a) and 21, for leave to file and serve a First Amended Complaint, attached hereto as Exhibit 1. A second copy ("Redlined") of this pleading "which ... indicate[s] in what respect it differs from the pleading which it amends," as required by Local Rule 15.1, is attached hereto as Exhibit 2. The basic purpose of the First Amended Complaint is to add Parker Intangibles, LLC, assignee of the patents-in-suit, as a formal plaintiff to this action. The original Complaint identified Parker Intangibles as the assignee, but it was not named as a party. This motion is filed within the time frames set by the Court's Scheduling Order for motions to add parties and amend pleadings. (D.I. 19, ¶ 2). Standard for Granting Leave to Amend A party can be added to an action by amending the Complaint. Texas Energy Reserve Corp v. Dept. of Energy, 535 F. Supp. 615, 621 (D. Del. 1982). A party may amend its pleading with leave of court; and "[t]he court should freely give leave when justice so requires." Fed.R.Civ.P. 15(a)(2) (December 1, 2007).
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As the Supreme Court has explained, the mandate that leave to amend "shall be freely given when justice so requires" is to be heeded. Foman v. Davis, 371 U.S. 178, 182 (1962). 1 In Long v. Wilson, 393 F.3d 390 (3d Cir. 2004), the Court summarized the controlling law of the Third Circuit: Rule 15(a) requires that leave to amend the pleadings be granted freely "when justice so requires." Fed. R. Civ. Pro. 15(a). We have held that motions to amend pleadings should be liberally granted. See, e.g., Adams v. Gould Inc., 739 F.2d 858, 867-68 (3d Cir. 1984) ("[U]nder the liberal pleading philosophy of the federal rules as incorporated in Rule 15(a), an amendment should be allowed whenever there has not been undue delay, bad faith on the part of the [movant], or prejudice to the [nonmovant] as a result of the delay."). In Lundy v. Adamar of New Jersey, Inc., 34 F.3d 1173 (3d Cir. 1994), we stated: "This Court has often held that, absent undue or substantial prejudice, an amendment should be allowed under Rule 15(a) unless `denial [can] be grounded in bad faith or dilatory motive, truly undue or unexplained delay, repeated failure to cure deficiency by amendments previously allowed or futility of amendment.'" Id. at 1196 (quoting Bechtel v. Robinson, 886 F.2d 644, 652-53 (3d Cir. 1989) (emphasis in original). 393 F.3d at 400. Thus, leave should be freely granted to amend a Complaint unless there is undue delay, bad faith, prejudice to the opposing party, repeated failures to cure defects through earlier amendments, or futility. Leave to Amend the Complaint Should be Granted Here The original Complaint in this matter identified Parker as the only plaintiff. The Complaint pleaded that Parker was the exclusive licensee under all of the patents-in-suit, it had the right to sue for past, present, and future infringement of the patents, and it had the rights to seek injunctive relief and monetary damages. Complaint (D.I. 1) at ¶¶ 5-9.
The language of the rule has recently changed from "shall" to "should". According to the Notes of Advisory Committee on 2007 Amendments, "[t]he language of Rule 15 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only." 2
1
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Parker Intangibles was identified as the formal "owner" of the patents. Complaint. Id. In order for Parker, the exclusive licensee, to have the rights alleged in the Complaint, the exclusive licensee should hold "all substantial rights to the patent." Paradise Creations, Inc. v. U V Sales, Inc., 315 F.3d 1304, 1308 (Fed. Cir. 2003). Because Parker holds such rights, it is appropriately named as plaintiff. Parker is also a plaintiff in related cases Parker-Hannifin Corp. v. Zippertubing (Japan), LTD. (Civil Action No. 1:06-cv-00751) ("the Zippertubing Action") and ParkerHannifin Corp. v. Schlegel Electronic Materials Inc. (Civil Action No. 1:07-cv-266-***) ("the Schlegel Action"). Each of these cases share similar issues with the present case and include common patents-in-suit. Each of the defendants in the Zippertubing and Schlegel Actions have affirmatively denied that Parker alone has standing to assert the patents. Zippertubing Action D.I. 7, ¶¶ 5-8; Schlegel Action D.I. 14, ¶¶ 6-10. In the present case, Seiren Co., LTD ("Seiren") has alleged insufficient knowledge or information as to Parker's standing, thereby denying same under Fed.R.Civ.P. 8(b). D.I. 7, ¶¶ 5-9. While reaffirming its standing to sue and seek relief under the patents, Parker desires to avoid any unnecessary dispute regarding standing, such as whether Parker has "all substantial rights to the patent." Such a dispute can be easily avoided by adding the assignee of the patents, Parker Intangibles, LLC, as a formal plaintiff. That is the basic purpose and effect of the First Amended Complaint. Accordingly, Parker respectfully requests leave to file and serve the First Amended Complaint. The filing of the First Amended Complaint will avoid the unnecessary dispute over standing, and save judicial resources and substantial litigation costs for both parties.
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While there are good reasons to grant leave to file the First Amended Complaint, there are no reasons not to. Particularly, none of the conditions warned of in Long are present in the instant case. There is no bad faith or undue delay. The leave requested by Parker will simplify the case by obviating the possible issue of standing and allow the parties to focus on the merits. Parker's motives for filing the Amended Complaint will serve the best interests of the parties and the Court--there is no bad faith. The request for leave is timely filed within the period for adding parties set by the Court. Seiren will not be prejudiced by the grant of leave. As shown in Exhibit 2, the First Amended Complaint includes the same averments and seeks the same relief as does the original Complaint. The only difference is the addition of Parker Intangibles, the formal patent owner, as another plaintiff seeking that same relief and for those same reasons. Accordingly, Seiren has been on full notice of the allegations contained in the First Amended Complaint since commencement of the suit, including the identity and relationship of Parker Intangibles to the asserted patents. The addition of Parker Intangibles as a party will in no way prejudice Seiren. There have been no prior amendments. Parker seeks for the first time to amend the Complaint. Entry of the First Amended Complaint would not be futile. The last reason for denying leave to amend a pleading set forth in Long is futility. In the present case, the addition of Parker Intangibles as a plaintiff will simplify the issues to be litigated, save judicial resources and facilitate cost savings for both parties. These are legitimate and desirable ends that are far from futile.
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Because there are no good reasons to deny leave to file the First Amended Complaint, this Court should grant leave freely. Long, 393 F.3d at 400. Further, entry of the amended pleading will serve the interests of efficient litigation and judicial economy. For this reason as well, leave should be granted. WHEREFORE, Plaintiff requests leave to file and serve the attached First Amended Complaint. Respectfully submitted, /s/ Rudolf E. Hutz Rudolf E. Hutz (#484) Francis DiGiovanni (#3189) Steven A. Nash (PA #85707 admitted pro hac vice) The Nemours Building 1007 N. Orange Street P.O. Box 2207 Wilmington, DE 19899 Phone (302) 658-9141 [email protected] [email protected] [email protected] Dated: January 10, 2008
585256v1
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CERTIFICATE OF SERVICE I hereby certify that on January 10, 2008, I caused to be electronically filed a true and correct copy of the foregoing document with the Clerk of the Court using CM/ECF, which will send notification that such filing is available for viewing and downloading to counsel of record on the Court's CM/ECF registrants for this case. I further certify that on January 10, 2008, I caused a copy of the foregoing document to be served upon the following in the manner indicated: BY E-MAIL AND HAND DELIVERY Jack B. Blumenfeld Julia Heaney Morris, Nichols, Arsht & Tunnell, LLP 1201 N. Market Street P.O. Box 1347 Wilmington, DE 19899 [email protected] BY E-MAIL AND U.S. MAIL Scott M. Daniels Ken-Ichi Hattori Michael J. Caridi Westerman, Hattori, Daniels & Adrian, LLP 1250 Connecticut Ave. NW Washington, D.C. 20036 [email protected]
/s/ Rudolf E. Hutz Rudolf E. Hutz (#484)
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EXHIBIT A
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EXHIBIT B
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EXHIBIT C
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EXHIBIT D
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EXHIBIT E
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE PARKER HANNIFIN CORPORATION, Plaintiff, v. SEIREN CO., LTD., Defendant. ) ) ) ) ) ) ) ) )
Civil Action No. 07-cv-00104-***
CERTIFICATION OF COUNSEL PURSUANT TO LOCAL RULE 7.1.1 I, Steven A. Nash, counsel for Plaintiff, Parker-Hannifin Corporation ("Parker"), hereby certify that counsel for Plaintiff has conferred with counsel for Defendant, Seiren Co., Ltd. ("Seiren") in an attempt to reach an agreement on the matters set forth in the foregoing Motion for Leave to File Amended Complaint. However, after a reasonable effort the parties were unable to reach a resolution. Dated: January 10, 2008 /s/ Steven A. Nash Steven A. Nash (PA #85707 admitted pro hac vice)
CONNOLLY BOVE LODGE & HUTZ LLP
The Nemours Building 1007 North Orange Street Wilmington, DE 19899 (302) 658-9141 [email protected]
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE PARKER HANNIFIN CORPORATION, Plaintiff, v. SEIREN CO., LTD., Defendant. ) ) ) ) ) ) ) ) )
Civil Action No. 07-cv-00104-***
ORDER WHEREAS, the Court has reviewed plaintiff Parker-Hannifin Corp.'s Motion for Leave to File First Amended Complaint (the "Motion") arguments made thereupon, and any opposition thereto; IT IS SO ORDERED, this ______ day of ______________, 2008, pursuant to Federal Rule of Civil Procedure 15(a), that the Motion is granted, and plaintiff ParkerHannifin Corp.'s First Amended Complaint as set forth in Exhibit 1 to the Motion is deemed filed and served on defendant Seiren Co., LTD.
____________________________________ United States District Judge
Free Motion for Leave to File - District Court of Delaware - Delaware
| File Size: | 4,814.0 kB |
| Pages: | 79 |
| Date: | September 8, 2008 |
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| State: | Delaware |
| Category: | District Court of Delaware |
| Author: | unknown |
| Word Count: | 2,841 Words, 16,270 Characters |
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