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Boston Scientific Corp. v. Edwards Lifesciences Corp.

United States District Court, D. Delaware

February 28, 2017

BOSTON SCIENTIFIC CORPORATION and BOSTON SCIENTIFIC SCIMED, INC., Plaintiffs,
v.
EDWARDS LIFESCIENCES CORPORATION, Defendant. EDWARDS LIFESCIENCES CORPORATION, EDWARDS LIFESCIENCES PVT, PNC, and EDWARDS LIFE SCIENCES LLC, Counterclaim and Third-Party Plaintiffs,
v.
BOSTON SCIENTIFIC CORPORATION, BOSTON SCIENTIFIC SCIMED, PNC, and SADRA MEDICAL, PNC, Counterclaim and Third-Party Defendants.

          MEMORANDUM OPINION

          SHERRY R. FALLON UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Presently before the court in this patent infringement action is the motion for leave to amend an answer pursuant to Federal Rule of Civil Procedure 15(a)(2), filed by defendant and counterclaim plaintiff, Edwards Lifesciences Corporation, as well as counterclaim and third-party plaintiffs, Edwards Lifesciences PVT, Inc. and Edwards Lifesciences LLC (collectively, "Edwards"). (D.I. 65) Plaintiffs and counterclaim defendants, Boston Scientific Corporation and Boston Scientific Scimed, Inc. (collectively, "Boston Scientific"), oppose the motion. (D.I. 75) For the following reasons, the court will grant Edwards' motion for leave to amend its answer.

         II. BACKGROUND

         On April 19, 2016, Boston Scientific filed this suit against Edwards, alleging infringement of U.S. Patent No. 8, 992, 608 ("the '608 patent"). (D.I. 1) On June 9, 2016, Edwards filed its answer and counterclaims. (D.I. 10) On November 30, 2016, Edwards filed a motion to amend its answer to add a prior use affirmative defense under 35 U.S.C. § 273. (D.I. 65 at ¶ 1) Pursuant to the scheduling order, [1] the deadline to amend pleadings was November 30, 2016. (D.I. 34 at ¶ 2) The motion presently pending before the court was filed on the final day for amending pleadings set forth in the scheduling order. Fact discovery is scheduled to be completed by May 26, 2017. (Id. at ¶ 1(a))

         III. 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." Fed.R.Civ.P. 15(a)(2). The decision to grant or deny leave to amend lies within the discretion of the court. See Foman 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. Arco, 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 Foman, 371 U.S. at 182; In re Burlington, 114 F.3d at 1434.

         IV. ANALYSIS

         A. Sufficiency of the Pleading

         Boston Scientific argues that Edwards' proposed amendment lacks sufficient information to allege an affirmative prior use defense, although it does not formally raise a futility challenge. (D.I. 73 at ¶ 7) Edwards counters that the proposed amendment provides sufficient information to put Boston Scientific on notice that Edwards is asserting a prior use defense pursuant to § 273, and more detailed facts supporting that defense will be revealed during the course of fact discovery. (D.I. 75 at ¶ 9)

         The court concludes that Edwards' prior use affirmative defense is factually sufficient at this stage of the proceedings because affirmative defenses pleaded pursuant to Rule 8(c) are not held to the same pleading requirements as claims for relief brought in accordance with Rule 8(a). "Due to the differences between Rules 8(a) and 8(c) in text and purpose, [ ] Twombly and Iqbal do not apply to affirmative defenses, which need not be plausible to survive. [An affirmative defense] must merely provide fair notice of the issue involved." Senju Pharm. Co. v. Apotex, Inc., 921 F.Supp.2d 297, 303 (D. Del. 2013) (internal quotation marks and citations omitted). "Rule 8(a) requires a 'statement of the claim showing that the pleader is entitled to relief while Rule 8(c) only requires a pleader to 'state' an affirmative defense." Tyco Fire Prod. LP v. Victaulic Co., Ill. F.Supp.2d 893, 899 (E.D. Pa. 2011) (emphasis in original) (citing Charleswell v. Chase Manhattan Bank, N.A., C.A. No. 01-119, 2009 WL 4981730 (D.V.I. Dec. 8, 2009)). Boston Scientific has failed to point to any authority requiring a heightened pleading standard for asserting an affirmative defense. Consequently, the court concludes that Edwards' prior use affirmative defense is factually sufficient.

         B. Undue Delay

         The court does not find that Edwards' proposed amended answer would cause undue delay. First, Edwards' motion for leave to amend was filed within the deadline set forth in the scheduling order for amending pleadings, which generally precludes a finding of undue delay. (D.I. 34 at ¶ 2); see Invensas Corp. v. Renesas Elecs. Corp., C.A. No. 11-448-GMS-CJB, 2013 WL 1776112, at *3 (D. Del. Apr. 24, 2013) (granting plaintiffs motion to amend and finding no undue delay when plaintiff filed on the last day set by the scheduling order to amend pleadings); Butamax AdvancedBiofuels LLC v. Gevo, Inc., C.A. No. 11-54-SLR, 2012 WL 2365905, at *2 (D. Del. June 21, 2012) (holding that a motion to amend filed on the deadline for amended pleadings was "filed timely and, therefore, there can be no unfair prejudice to defendant"); LifePort Scis. LLC v. Endologix Inc., C.A. No. 12-1791-GMS, D.I. 105 at 2 (D. Del. July 29, 2015) ("Even assuming the plaintiff is correct that the defendant could have filed its motion sooner, the court cannot say the delay was undue . .. when this was explicitly contemplated as a possibility."). Second, the case is still in its early stages, and fact discovery is not scheduled to close until May 26, 2017. Edwards' purported failure to explain the delay between the filing of its initial answer and the filing of the proposed amended answer is insufficient to deny leave to amend under the facts of the present case. "The mere passage of time does not require that a motion to amend a complaint be denied on grounds of delay." Cureton v. Nat'l Collegiate Athletic Ass 'n, 252 F.3d 267, 273 (3d Cir. 2001).

         C. ...


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