United States District Court, D. Delaware
GALDERMA LABORATORIES, L.P.; NESTLE SKIN HEALTH S.A.; and TCD ROYALTY SUB, LLC, Plaintiffs,
AMNEAL PHARMACEUTICALS, LLC and AMNEAL PHARMACEUTICALS CO. I PVT.LTD., Defendants.
HONORABLE LEONARD P. STARK UNITED STATES DISTRICT JUDGE
Wilmington this 22nd day of January,
2018, having reviewed the parties' submissions
(D.I. 204, 206) relating to Plaintiffs Galderma Laboratories,
L.P., Nestle Skin Health S.A., and TCD Royalty Sub, LLC's
("Plaintiffs" or "Galderma") motion for
reconsideration (D.I. 204), IT IS HEREBY
ORDERED that Plaintiffs' motion (D.I. 204) is
November 29, 2017, the Court granted Defendants Amneal
Pharmaceuticals LLC and Amneal Pharmaceuticals Co. (I) Pvt.
Ltd.'s ("Defendants" or "Amneal")
motion to strike Plaintiffs' supplemental literal
infringement contentions. (D.I. 203) Plaintiffs move for
reconsideration of that decision, which Amneal opposes. (D.I.
purpose of a motion for reconsideration is to "correct
manifest errors of law or fact or to present newly discovered
evidence." Max's Seafood Cafe ex rel Lou-Ann,
Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)
(internal quotation marks omitted). A motion for
reconsideration is the "functional equivalent" of a
motion to alter or amend judgment under Federal Rule of Civil
Procedure 59(e). See Jones v. Pittsburgh Nat'l
Corp., 899 F.2d 1350, 1352 (3d Cir. 1990) (internal
quotation marks omitted). "A proper Rule 59(e) motion .
.. must rely on one of three grounds: (1) an intervening
change in controlling law; (2) the availability of new
evidence; or (3) the need to correct a clear error of law or
fact or to prevent manifest injustice." Lazaridis v.
Wehmer, 591 F.3d 666, 669 (3d Cir. 2010). Motions for
reconsideration "should be granted sparingly and may not
be used to rehash arguments which have already been briefed
by the parties and considered and decided by the Court."
Ciena Corp. v. Corvis Corp., 352 F.Supp.2d 526, 527
(D. Del. 2005).
Galderma contends reconsideration is appropriate based on
"newly discovered facts" that were "developed
after Plaintiffs' briefing on Amneal's motion."
(D.I. 204 at 1) Specifically, Galderma points to the rebuttal
report of Amneal's expert, Dr. Elder, a portion of which
addressed literal infringement ("Elder Rebuttal
Report"). (See Id. at 1-2) The Elder Rebuttal
Report, Galderma contends, proves Amneal was not prejudiced
by Plaintiffs' untimely literal infringement contentions
and, therefore, warrants reconsideration. (Id.)
Court disagrees. As an initial matter, there is no way to
know whether Dr. Elder's literal infringement opinions
are the same as they would have been had Galderma timely
asserted literal infringement, and provided Amneal a fair and
adequate amount of time to take discovery and evaluate
literal infringement. Galderma emphasizes that Dr. Elder
relied on the same facts and reasoning for his literal
infringement opinions as he did for his doctrine of
equivalence opinions - but of course he did, as these were
the only facts at his disposal. As Amneal points out, had
Galderma timely asserted literal infringement, "Amneal
could have taken [a] different approach to .. .
discovery." (D.I. 173 at 2)
assuming Dr. Elder's opinions would have been precisely
the same as those he articulated in the Elder Rebuttal
Report, Amneal was still prejudiced by Galderma's
conduct. In analyzing the Pennypack factors, the
Court found "Defendants were surprised [and] [we]re
prejudiced (in ways articulated in their letters)."
(D.I. 203) This prejudice included substantial lost
opportunities for Amneal to shape its litigation strategy in
response to Galderma's infringement contentions.
(See D.I. 173 at 1-2 (explaining various ways Amneal
was prejudiced, including lost opportunity to decide whether
to litigate or reformulate product, plead different claims or
defenses, take different approach to claim construction and
discovery, or obtain "additional experts better-suited
to address literal infringement"); D.I. 206 at 3-4
("Amneal was faced with new literal infringement
allegations two weeks before opening expert reports were due,
which forced it to choose from two bad options: either
scramble to have an expert respond in an effort to preserve
an expert opinion on the literal infringement allegations if
the Court allowed them into the case; or offer no response
and risk not preserving an opinion for trial if the pending
Motion to Strike was denied."))
Additionally, prejudice to Amneal was only one of the
multiple factors the Court found supported striking
Galderma's literal infringement contentions.
(See D.I. 203) The Elder Rebuttal Report leaves
untouched both (1) the unpersuasiveness of
"Plaintiffs' explanation for the timing of its new
theory" and (2) the fact that "no other adequate
remedy [wa]s possible without disrupting the trial."
remainder of Galderma's motion does nothing more than
"rehash arguments" previously presented to the
Court. (Compare D.I. 175 at 1-3 (contending Amneal
"omitt[ed] discussion" of in vitro
dissolution data in Paragraph IV Notice Letter, produced
dissolution data as part of "untimely production, "
and delayed in producing witnesses) with D.I. 204 at
4-5 (same)) Thus, it presents no grounds for reconsideration.
See Ciena Corp., 352 F.Supp.2d at 527.
Plaintiffs' request for oral
argument is also denied.
The Court's oral order stated, in
Having reviewed the parties' submissions (see D.I.
173, 175, 176, 190, 191), IT IS HEREBY ORDERED that: (1)
Defendants' motion to strike Plaintiffs' supplemental
infringement contentions (D.I. 172), which asserted literal
infringement - for the first time -two months after the
deadline for supplementing contentions, nearly three months
after the close of fact discovery, and around five months
after it appears Plaintiffs had received in discovery the
dissolution data (see, e.g., D.L 176 Ex. 5) purportedly
critical to their belated theory, is GRANTED; the Pennypack
factors support this conclusion, notwithstanding the
importance of the evidence being stricken and the lack of
indications of bad faith, as Defendants were surprised, are
prejudiced (in ways articulated in their letters),
Plaintiffs' explanation for the timing of its new theory
is unpersuasive (and they do not attempt to explain why they
provided Defendants' no ...