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InterMetro Industries Corp. v. Enovate Medical, LLC

United States District Court, M.D. Pennsylvania

March 7, 2017

INTERMETRO INDUSTRIES CORP., Plaintiff,
v.
ENOVATE MEDICAL, LLC, Defendant.

          MEMORANDUM OPINION

          MARIANI JUDGE

         I. Introduction

         Presently before the Court is Plaintiffs Motion for Leave to File a Third Amended Complaint (Doc. 166). For the reasons that follow, the Court will grant the Motion.

         II. Procedural History

         Plaintiff, InterMetro Industries Corporation ("InterMetro"), filed its first Complaint in this action on November 22, 2013, alleging violations of its patent claims in certain mobile medical point-of-care carts. (See Doc. 1). On September 30, 2014, this Court granted Motions to Dismiss by Defendant Enovate Medical, LLC ("Enovate") and by other similarly-situated Defendants in related cases. (See, e.g., Doc. 52). Plaintiff responded by filing an Amended Complaint (Doc. 55) which Enovate moved to dismiss on October 31, 2014 (Doc. 56). In late 2015, before the Court had ruled on the second Motion to Dismiss, Plaintiff moved for leave to file a Second Amended Complaint. In February, 2016, the Court granted Plaintiffs Motion subject to certain limitations. (See Docs. 140, 141).

         Plaintiffs Second Amended Complaint asserted claims against Enovate for infringement of 35 claims within the following six patents: 6, 493, 220 ("220"); 6, 721, 178 ("178"); 7, 612, 999 ("999"); 7, 791, 866 ("866"); 7, 990, 691 ("691"); 8, 526, 176 ("176"). (See generally, Doc. 142). Defendant answered Plaintiffs Second Amended Complaint in February, 2016 (Doc. 145) and asserted Counterclaims seeking a declaration of noninfringement of the patents at issue, a declaration of invalidity of the asserted claims by Plaintiff, and a declaration of unenforceability of the asserted patents for failure to disclose co-inventors and failure to disclose information material to patentability (id. at 40-59).

         On May 11, 2016, an Administrative Patent Judge on the Patent Trial and Appeal Board ("PTAB") issued two decisions following Inter Partes Reviews, requested by Enovate, of certain claims contained in Patents 178 and 220. The Judge found that claims 27, 28, 88, 101, and 108 of U.S. Patent No. 6, 721, 178 B1 were unpatentable, as were claims 1 and 2 of U.S. Patent No. 6, 493, 220 B1. (See Doc. 154; Enovate Med., LLC v. InterMetro Indus. Corp., Case IPR2015-00300 (PTAB May 11, 2016); Enovate Med., LLC v. InterMetro Indus. Corp., Case IPR2015-00301 (PTAB May 11, 2016)). On May 31, 2016, InterMetro filed notices of appeal of both decisions to the Federal Circuit (see Doc. 160, Ex. C, D) and the cases have been consolidated for purposes of the appeal.

         On July 28, 2016, Plaintiff moved for leave to file a Third Amended Complaint pursuant to Federal Rule of Civil Procedure 15(d). (Doc. 166). Plaintiffs Third Amended Complaint seeks to add a Count alleging that Enovate "has and is infringing, directly, indirectly, and willfully" Patent 9, 389, 643 ("643"). (Id. at 2). Patent 643 was issued on July 12, 2016, and is "part of the same family of patents that have been asserted against Enovate in the original Complaint." (Id.). A review of Plaintiffs red-lined copy of the Third Amended Complaint (Doc. 167-3) reveals that, with the exception of a typographical error in paragraph 107, the only apparent alteration to the Complaint is the addition of Count VII, alleging infringement of Patent 643. Enovate opposes InterMetro's Motion. (Doc. 220).

         III. Standard of Review

         Pursuant to the Federal Rules of Civil Procedure, "the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented." Fed.R.Civ.P. 15(d). "Because it refers to events that occurred after the original pleading was filed, a supplemental pleading differs from an amendment, which covers matters that occurred before the filing of the original pleading but were overlooked at the time." Owens-Illinois, Inc. v. Lake Shore Land Co., Inc., 610 F.2d 1185 (3d Cir. 1979). Nonetheless, "the standard applicable to motions to amend under Fed.R.Civ.P. 15(d) is essentially the same standard that applies to Fed. Civ. P. 15(a)." Medeva Pharma Ltd. v. Am. Home Prods. Corp., 201 FRD 103, 104 n.3 (D. Del. 2001).

         The application of Federal Rule of Civil Procedure 15(a) and (d) is within the "sound" and "broad" discretion of the Court. Intel Corp. v. Amberwave Sys. Corp., 233 FRD 416, 418 (D. Del. 2005); Medeva Pharma, 201 FRD at 104. A party may amend its pleading with leave of court. The Court should "freely give" such leave "when justice so requires." Fed.R.Civ.P. 15(a)(2). The Supreme Court has described this rule as follows:

[Rule 15(a)(2)'s] mandate is to be heeded. If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.-the leave sought should, as the rules require, be "freely given."

Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed. 222 (1962) (internal citations omitted); see also Arthur v. Maersk, Inc.,434 F.3d 196, 204 (3d Cir. 2006) ("Among the factors that may justify denial of leave to amend are undue delay, bad faith, and futility."). The Third Circuit has "consistently recognized, however, that 'prejudice to the non-moving party is the touchstone for the denial of an amendment.'" Id. (quoting Lorenz v. CSX Corp.,1 F.3d 1406, 1414 (3d Cir. 1993)). Similarly, "[l]eave to supplement should be granted if it will promote the just disposition of the case, will not cause undue prejudice or delay and will not prejudice the rights of ...


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