Free Motion to Amend/Correct - District Court of Delaware - Delaware

Case 1:06-cv-00028-SLR-LPS

Document 172

Filed 10/11/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE MCKESSON AUTOMATION, INC., Plaintiff, v. SWISSLOG ITALIA S.P.A. and TRANSLOGIC CORPORATION, Defendants. ) ) ) ) ) ) ) ) ) ) )

C.A. No. 06-028 (***)

DEFENDANTS SWISSLOG ITALIA S.P.A'S AND TRANSLOGIC CORPORATION'S REVISED MOTION FOR LEAVE TO AMEND THEIR ANSWERS AND COUNTERCLAIMS Pursuant to Federal Rule of Civil Procedure 15(a), defendants Swisslog Italia S.p.A. and Translogic Corporation hereby move for leave to file Amended Answers and Counterclaims and to withdraw the Motion to Amend filed October 1, 2007 (D.I. 161).1 Defendants seek leave to amend to plead antitrust violations under Sections 1 and 2 of the Sherman Act, Section 3 of the Clayton Act, and 6 Del. C. § 2103 based on plaintiff's anticompetitive behavior. Defendants also seek to add an affirmative defense and counterclaim of unenforceability of the patents-in-suit and an affirmative defense of lack of standing to sue. The grounds for this motion are set forth in Defendants' Opening Brief In Support of Revised Motion for Leave To Amend Their Answers and Counterclaims, filed herewith. Pursuant to D. Del. LR 15.1, copies of defendants' proposed First Amended Answers and Counterclaims are attached as Exhibits A and B to the Declaration of Bryan N. DeMatteo ("DeMatteo Decl."), filed herewith, and red-lined versions of the Amended Answers and
1

The Amended Answers and Counterclaims that are the subject of this motion are a revised version of the pleadings that Defendants filed on October 1 (D.I. 161). Plaintiff does not oppose Defendants' withdrawal of D.I. 161.

Case 1:06-cv-00028-SLR-LPS

Document 172

Filed 10/11/2007

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Counterclaims indicating how the amended pleadings differ from the originals are attached as DeMatteo Decl. Exhs. C and D.

MORRIS, NICHOLS, ARSHT & TUNNELL LLP

/s/ Julia Heaney (#3052)
Julia Heaney (#3052) Maria Granovsky (#4709) 1201 N. Market Street P.O. Box 1347 Wilmington, DE 19899 (302) 658-9200 [email protected] Attorneys for Defendants Swisslog Italia, S.p.A. and Translogic Corporation

OF COUNSEL: Alfred R. Fabricant Lawrence C. Drucker Richard LaCava Dickstein Shapiro LLP 1177 Avenue of the Americas New York, NY 10036 (212) 277.6500 October 11, 2007
1255607

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Case 1:06-cv-00028-SLR-LPS

Document 172

Filed 10/11/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE MCKESSON AUTOMATION, INC., Plaintiff, v. SWISSLOG ITALIA S.P.A. and TRANSLOGIC CORPORATION, Defendants. ) ) ) ) ) ) ) ) ) )

C.A. No. 06-028 (***)

[PROPOSED] ORDER GRANTING DEFENDANTS' REVISED MOTION FOR LEAVE TO AMEND THEIR ANSWERS AND COUNTERCLAIMS Whereas, Defendants Swisslog Italia S.p.A. and Translogic Corporation have moved for leave to amend their Answers and Counterclaims, and the Court having considered the motion and all papers, argument and other matter submitted in support of and in opposition of the motion, IT IS HEREBY ORDERED THAT: 1. Defendants' Revised Motion for Leave to Amend Their Answers and

Counterclaims is hereby GRANTED. Defendants' First Amended Answers and Counterclaims shall be deemed filed as of the date of this Order. 2. this order. IT IS SO ORDERED this __________ day of ___________________, 2007. Plaintiff shall file a reply to the amended counterclaims within 10 days of

United States District Court Judge

Case 1:06-cv-00028-SLR-LPS

Document 172

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RULE 7.1.1 CERTIFICATE Pursuant to D. Del. L.R. 7.1.1, this is to certify that counsel for defendants has raised the subject matter of this motion with counsel for plaintiff and counsel for plaintiff stated that they will oppose the motion.

/s/ Julia Heaney (#3052)
_____________________________ Julia Heaney

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CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on October 11, 2007 I electronically filed the foregoing with the Clerk of the Court using CM/ECF which will send notification of such filing to the following: Dale R. Dubé, Esquire Blank Rome LLP Additionally, I hereby certify that true and correct copies of the foregoing were caused to be served on October 11, 2007 upon the following individuals in the manner indicated BY E-MAIL Dale R. Dubé, Esquire Blank Rome LLP Chase Manhattan Centre 1201 Market Street, Suite 800 Wilmington, DE 19801 Blair M. Jacobs, Esquire Sutherland Asbill & Brennan LLP 1275 Pennsylvania Avenue, NW Washington, DC 20004

/s/ Julia Heaney (#3052)
Julia Heaney (#3052) [email protected]