United States District Court, D. Delaware
before the Court are Defendant's Motions to Strike the
Untimely Declarations from Dr. Almeroth and Dr. Cooklev (D.I.
1032, 1035) and Plaintiffs Motion for Leave to File a Fourth
Amended Complaint (D.I. 1079). I have reviewed the
parties' briefing associated with the motions. (D.I.
1033, 1036, 1062, 1065, 1079, 1087, 1089). At the pre-trial
conference, Defendant agreed that Plaintiffs motion could be
decided based upon the briefing in the motions in
limine, the disclosures in the pre-trial order, and the
arguments made at the pretrial conference.
TQ Delta filed this lawsuit against Defendant 2Wire on
November 4, 2013 asserting infringement of twenty-four
patents. (D.I. 1). I have divided the case into separate
trials based on families of patents. (D.I. 280). The motions
at issue herein address untimely disclosure of expert opinion
relating to the Family 2 and 3 patents. Fact discovery for
all the asserted patent families closed on October 1, 2018.
Expert reports were sequenced as follows: Family 2 opening
reports were due on November 2, 2018; Family 2 rebuttal
reports were due on November 29, 2018; Family 2 reply reports
were due on December 21, 2018; Family 3 opening reports were
due on November 28, 2018; Family 3 rebuttal reports were due
on December 28, 2018; and Family 3 reply reports were due on
January 18, 2019. Expert discovery for both Family 2 and
Family 3 closed on February 8, 2019. The pretrial conference
for Family 2 took place on April 18, 2019 and trial is
scheduled for April 29, 2019. (D.I. 513). The pretrial
conference for Family 3 is scheduled for May 10, 2019 and
trial is scheduled for May 20, 2019.
motions to strike discussed herein concern two purportedly
untimely declarations from Plaintiffs expert Dr. Almeroth
(D.I. 971, 974) and the reply declaration of Dr. Cooklev in
support of Plaintiff s Family 2 Motion for Summary Judgment
of Infringement (D.I. 927). Dr. Almeroth's declarations
were filed on March 15, 2019. Dr. Cooklev's declaration
was filed concurrently with Family 2 reply briefing on March
12, 2019. Defendant has filed motions to strike all three
declarations, which it argues are untimely supplemental
reports by Plaintiffs experts. The parties now agree that
Defendant's motions are moot in regard to Dr.
Almeroth's Family 2 declaration (D.I. 971). (D.I. 1046 at
1; D.I. 1087 at 1).
Motion to Strike
Rule of Civil Procedure 37(c)(1) provides that "[i]f a
party fails to provide information ... as required by Rule
26(a) or (e), the party is not allowed to use that
information ... to supply evidence on a motion, at a hearing,
or at trial, unless the failure was substantially justified
or is harmless." To determine whether a failure to
disclose was harmless, courts in the Third Circuit consider
the Pennypack factors: (1) the prejudice or surprise
to the party against whom the evidence is offered; (2) the
possibility of curing the prejudice; (3) the potential
disruption of an orderly and efficient trial; (4) the
presence of bad faith or willfulness in failing to disclose
the evidence; and (5) the importance of the information
withheld. Konstantopoulos v. Westvaco Corp., 112
F.3d 710, 719 (3d Cir. 1997) (citing Meyers v. Pennypack
Woods Home Ownership Ass'n, 559 F.2d 894, 904-05 (3d
Cir. 1977)). "[T]he exclusion of critical evidence is an
'extreme' sanction, not normally to be imposed absent
a showing of willful deception or 'flagrant
disregard' of a court order by the proponent of the
evidence." Id. The determination of whether to
exclude evidence is within the discretion of the district
Motion for Leave to Amend
Rule of Civil Procedure 15 governs amendments to the
pleadings generally. Rule 15(a)(2) provides that "[t]he
court should freely give leave [to amend] when justice so
requires." Fed.R.Civ.P. 15(a). "Among the grounds
that could justify a denial of leave to amend are undue
delay, bad faith, dilatory motive, prejudice, and
futility." Shane v. Fauver, 213 F.3d 113, 115
(3d Cir. 2000). "[P]rejudice to the non-moving party is
the touchstone for the denial of an amendment."
Mullin v. Balicki, 875 F.3d 140, 150 (3d Cir. 2017).
Rule of Civil Procedure 16(b) also applies when a party moves
to amend past the date set by the scheduling order. E.
Minerals & Chemicals Co. v. Mahan, 225 F.3d 330, 340
(3d Cir. 2000); Media Pharm. Inc. v. Teva Pharm. USA,
Inc., 2016 WL 6693113, at *1 & n.2 (D. Del. Nov. 14,
2016). Rule 16(b)(4) provides. "A schedule may be
modified only for good cause and with the judge's
consent." Fed.R.Civ.P. 16(b)(4). "Good cause is
present when the schedule cannot be met despite the moving
party's diligence." Media Pharm., 2016 WL
6693113, at * 1. "In contrast to Rule 15(a), the good
cause standard under Rule 16(b) hinges on diligence of the
movant, and not on prejudice to the non-moving party."
5". Track & Pump, Inc. v. Terex Corp., 722
F.Supp.2d 509, 521 (D.Del. 2010).
Dr. Almeroth's Declarations
moved to strike two purported supplemental expert reports by
Plaintiffs expert, Dr. Almeroth, which were provided in
conjunction with summary judgment briefing for both Family 2
and 3. Defendant asserts that despite styling these reports
as a "Notice of Subsequent Authority" (D.I. 971)
and as a "Declaration of Kevin C. Almeroth" (D.I.
974), these documents are "supplemental expert reports
based on a further review of Broadcom source code conducted
by Dr. Almeroth sometime in March 2019." (D.I. 1033 at
1). The parties now agree that Defendant's motion is moot
as to Dr. Almeroth's Family 2 declaration. (D.I. 1046 at
1; D.I. 1087 at 1). However, Defendant maintains that the
motion to strike Dr. Almeroth's Family 3 declaration is
not moot, at least with respect to summary judgment briefing,
and now requests that I order Plaintiff to produce Dr.
Almeroth for a half-day deposition on his supplemental expert
reports. (D.I. 1087 at 3-4).
extent that the opinions included in Dr. Almeroth's
Family 3 reply declaration were not raised in the opening
briefs, I will exclude them from consideration in my
determination of the parties' summary judgment motions on
infringement and non-infringement of the Family 3 patents.
However, I do not believe these opinions need to be struck,
as I have ...