SHERRY R. FALLON, Magistrate Judge.
Presently before the court in this patent infringement action are two motions: (1) plaintiff Monee Holding AG's ("Monee") motion for leave to file a second amended complaint pursuant to Federal Rules of Civil Procedure 15(a) and 16, filed on August 5, 2013 (D.I. 188); and (2) Monee's motion for leave to supplement the Markman record, filed on September 10, 2013 (D.I. 212). For the following reasons, the court will deny the motions.
On January 1, 2002, United States Patent No. 6, 335, 678 ("the 678 patent"), entitled "Electronic Device, Preferably an Electronic Book, " issued to Theodor Heutschi. (D.I. 34 at ¶ 14) On November 12, 2009, a request for ex parte reexamination of the 678 patent was filed, and the United States Patent and Trademark Office (the "PTO") issued an ex parte reexamination certificate to Monee on May 10, 2011. ( Id at ¶¶ 15-16) Monee is the owner by assignment of the entire right, title, and interest in and to the 678 patent, as reexamined. ( Id. at ¶¶ 14, 18) The reexamined 678 patent embodiments include a flat electronic device housing a processing system to communicate, store, interact with, and display digital media transferred from a peripheral device over a multiband radio network station incorporating a GSM/SIM chip and manipulated by various input means, including a touch screen. ( Id. at ¶ 17)
Monee filed its complaint in the instant action on September 9, 2011, asserting infringement of the 678 patent, as reexamined, against defendants Samsung Electronics Inc. and Samsung Electronics America, Inc. ("SEA"). (D.I. 1) Monee filed its first amended complaint as a matter of right on December 19, 2011, changing the name of nonexistent defendant Samsung Electronics Inc. to Samsung Electronics Co., Ltd. ("SEC"), the parent company of defendant SEA. (D.I. 34) Monee made this change after SEA notified Monee of the apparent error. (D.I. 188 at 2; D.l. 200 at 1)
On August 2, 2012, this court entered a scheduling order. (D.I. 59) The scheduling order provided that joinder of the parties was to be completed by March 29, 2013 and fact discovery was to be completed by August 1, 2013. ( Id. ) On June 27, 2013, the parties entered into a stipulation to extend the fact discovery deadline to September 10, 2013. (D.I. 173) Monee filed the instant motion to amend on August 5, 2013, seeking to add Samsung Telecommunications America, LLC ("STA") as a defendant in the case. (D.I. 188) On September 9, 2013, the parties entered into a second stipulation to extend the fact discovery deadline to October 14, 2013. (D.I. 209)
A. Motion to File Second Amended Complaint
1. Legal standard
Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that after a responsive pleading has been filed, a party may amend its pleading "only with the opposing party's written consent or the court's leave, " and "[t]he court should freely give leave when justice so requires." The decision to grant or deny leave to amend lies within the discretion of the court. See Farnan v. Davis, 371 U.S. 178, 182 (1962); In re Burlington Coat Factory Sees. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997). The Third Circuit has adopted a liberal approach to the amendment of pleadings. See Dole v. Area, 921 F.2d 484, 487 (3d Cir. 1990). In the absence of undue delay, bad faith, or dilatory motives on the part of the moving party, the amendment should be freely granted, unless it is futile or unfairly prejudicial to the non-moving party. See Farnan, 371 U.S. at 182; In re Burlington, 114 F.3d at 1434.
An amendment is futile if it is frivolous, fails to state a claim upon which relief can be granted, or "advances a claim or defense that is legally insufficient on its face." Koken v. GPC Int'l, Inc., 443 F.Supp.2d 631, 634 (D. Del. 2006). Delay alone is an insufficient reason to deny leave to amend, but there are grounds to deny amendment if the delay is coupled with either an unwarranted burden on the court or undue prejudice to the non-moving party as a result of the amendment. See Cureton v. Nat'l Collegiate Athletic Ass'n, 252 F.3d 267, 273 (3d Cir. 2001).
"[P]rejudice to the non-moving party is the touchstone for the denial of the amendment." Bechtel v. Robinson, 886 F.2d 644, 652 (3d Cir. 1989) (internal quotation marks omitted). To establish prejudice, the non-moving party must make a showing that allowing the amended pleading would (1) require the non-moving party to "expend significant additional resources to conduct discovery and prepare for trial, " (2) "significantly delay the resolution of the dispute, " or (3) "prevent [a party] from bringing a timely action in another jurisdiction." Long v. Wilson, 393 F.3d 390, 400 (3d Cir. 2004); see also Cureton, 252 F.3d at 273 (explaining that a party may suffer undue prejudice if the proposed amendment causes surprise or necessitates additional discovery, additional costs, or additional preparation to defend against new facts or theories alleged). "Thus, while bearing in mind the liberal pleading philosophy of the federal rules, " it is also true that "substantial or undue prejudice to the non-moving party is a sufficient ground for denial of leave to amend." Cureton, 252 F.3d at 273.
If a party seeks leave to amend after a deadline imposed by the scheduling order, the court must apply Rule 16 of the Federal Rules of Civil Procedure. WebXchange Inc. v. Dell Inc., C.A. No. 08-132-JJF, 2010 WL 256547, at *2 (D. Del. Jan. 20, 2010). Pursuant to Rule 16(b)(4), "[a] schedule may be modified only for good cause and with the judge's consent." "The good cause element requires the movant to demonstrate that, despite diligence, the proposed claims could not have been reasonably sought in a timely manner." Venetec Int'l v. Nexus Med, 541 F.Supp.2d 612, 618 (D. ...