The opinion of the court was delivered by: William W. Caldwell United States District Judge
Presently before the court are plaintiff Kimberly-Clark Worldwide, Inc.'s ("KC") motions to strike, dismiss, sever and transfer, or in the alternative sever and stay defendants', First Quality Baby Products, LLC, First Quality Products, Inc., First Quality Retail Services, LLC, and First Quality Hygienic, Inc. (collectively "First Quality"), counterclaims I-VII. For the following reasons, we will grant KC's motion to strike in part, without reaching the merits of its other motions.
This controversy originally began in February 2009 when defendants filed a complaint in this court seeking declaratory judgment of invalidity and noninfringment of the Kuepper Patent. KC moved for dismissal arguing that we lacked subject matter jurisdiction. We agreed and dismissed the case. See First Quality Baby Prods., LLC v. Kimberly-Clark Worldwide, Inc., No. 09-0354, 2009 WL 1675088 (M.D. Pa. June 15, 2009). Prior to our dismissal, however, KC filed a patent infringement action in the United States District Court for the Northern District of Texas. On August 31, 2009, this case was transferred to this court.
On February 12, 2010, KC submitted a motion seeking leave to file a second amended complaint. KC's proposed amendment included the same allegations against all the defendants, but also sought to add a new defendant, First Quality Hygienic, Inc., add allegations of inducement and/or contributory infringement in Count I, add allegations of willful infringement to Counts III and IV, and finally include additional allegedly infringing products under Counts VI, VII, VIII, and X. We granted leave and the second amended complaint was deemed filed on May 5 ,2010.
On July 26, 2010, First Quality filed an answer wherein it alleged numerous additional facts that were not present in its original answer nor its answer to the amended complaint. In addition, First Quality alleged, for the first time, seven new counterclaims. Subsequently, KC filed the instant motions.
Federal Rule of Civil Procedure 12(f) provides that a court may, on its own or on motion by a party, "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f).
Federal Rule of Civil Procedure 15 governs amendments to pleadings. It provides, in relevant part, that:
A party may amend its pleading once as a matter of course within 21 days after serving it, or if the pleading is one to which a responsive pleading is required...In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires. Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later.
Fed.R.Civ.P. 15(a). Generally, we should allow an amended pleading unless the party seeking amendment has exhibited "undue delay, bad faith or dilatory motive;" "repeated failure to cure deficiencies by amendments previously allowed;" or if there is "undue prejudice to the opposing party by virtue of allowance of the amendment...." Kibbie v. BP/Citibank, No. 08-1804, 2009 WL 2950365, at *9 (M.D. Pa. Sept. 9, 2009)(quoted case omitted).
First Quality first argues that its answer to the second amended complaint is not an amended pleading, but rather an original answer to a new complaint. This is simply not true. Defendant's answer to KC's second amended complaint contains seven new antitrust and fraud claims as well as new factual allegations that did not appear in its answer to KC's amended complaint. Since First Quality's answer contains new allegations and counterclaims that were not originally pleaded in both its answer to the original complaint nor its answer to the amended complaint, this answer represents a new pleading that is subject to Rule 15.
The Third Circuit has not addressed the specific issue before us: whether a defendant has a right to plead additional counterclaims when responding to an amended complaint. See QRG, Ltd. v. Nartron Corporation, No. 06-1777, 2007 WL 1202967 (M.D. Pa. Apr. 23, 2007)(addressing the same issue). In the absence of guiding Third Circuit precedent, First Quality contends that this district adopted an approach that permits defendants to always bring new counterclaims regardless of the scope of a new amended complaint. (doc. 314 at 42.) In support, defendant principally relies on Municipal Revenue Servs., Inc. v. Xspand, Inc., No. 05-671, 2006 WL 91358 (M.D. Pa. Jan. 12, 2006). In that case, however, Judge ...