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TQ Delta LLC v. 2Wire Inc.

United States District Court, D. Delaware

April 25, 2019

TQ DELTA, LLC, Plaintiff,
v.
2WIRE, INC., Defendant.

          MEMORANDUM ORDER

         Pending 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.

         I. BACKGROUND

         Plaintiff 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.[1] (D.I. 513). The pretrial conference for Family 3 is scheduled for May 10, 2019 and trial is scheduled for May 20, 2019.

         The 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).

         II. LEGAL STANDARD

         A. Motion to Strike

         Federal 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 court. Id.

         A. Motion for Leave to Amend

         Federal 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).

         Federal 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).

         III. DISCUSSION

         A. Dr. Almeroth's Declarations

         Defendant 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).

         To the 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 ...


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