New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

Commercial Litigation and Arbitration

New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
Commercial Litigation and Arbitration
« Back to Complex Lit Blog

Filing of Amended Complaint Does Not Permit Defendant to Amend Counterclaims as of Right to Add Claims Unrelated to the Amendment — 2009 Amendments to Rule 15 and Deletion of Rule 13(f) Explained — 3 Extra Days for Electronic Service

Download PDF

From UPEK, Inc. v. AuthenTec, Inc., 2010 U.S. Dist. LEXIS 76807 (N.D. Cal. July 6, 2010):

UPEK contends that AuthenTec's entitlement to amend its counterclaims as of right ended twenty-four days after UPEK filed its answer to the counterclaims. UPEK filed an amended complaint on the same day it answered AuthenTec's original counterclaims. AuthenTec argues in essence that the filing of the amended complaint "restarted the clock" with respect to its entitlement to amend its counterclaims as of right. Rule 15(a)(1) provides that "[a] party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." Rule 15(a)(3) also provides that "any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later."

3 Fed. R. Civ. P. 6(d) and 5(b)(2)(E) allows an additional three days within which a party may respond when papers are served via electronic means, as is the case here.

1. 2009 amendment to Rule 15

Rule 15(a)(1) was "amended [in 2009] to make three changes in the time allowed to make one amendment as a matter of course". Adv. Comm. Notes to 2009 Amendments to Fed. R. Civ. P. 15. "First, the right to amend once as a matter of course [under the 2009 amendment] terminates 21 days after service of a motion under Rule 12(b), (e), or (f)." Id. Under the previous version of Rule 15(a)(1), "[s]erving a motion attacking the pleading did not terminate the right to amend, because a motion is not a 'pleading' as defined in [Fed. R. Civ. P. 7]. The right to amend survived beyond decision of the motion unless the decision expressly cut off the right to amend." Id. Thus, under the previous version of Rule 15(a)(1), a plaintiff potentially could amend a complaint as a matter of right months or even years after filing, depending on the evolution of Rule 12 motions in that case. The 2009 amendment to Rule 15 provides a "fixed, predictable, and reasonably short period" for amendments as a matter of right. 3 James Wm. Moore, Moore's Fed. Practice § 15.12[3] (3d ed. 2009).

Second, "the right to amend once as a matter of course is no longer terminated by service of a responsive pleading. The responsive pleading may point out issues that the original pleader had not considered and persuade the pleader that amendment is wise. Just as amendment was permitted by former Rule 15(a) in response to a motion, so the amended rule permits one amendment as a matter of course in response to a responsive pleading." Id. Third, Rule 15 now allows one more day to amend a pleading to which no responsive pleading is allowed and omits the provision that cuts off the right to amend if the action is on the trial calendar.

In addition, the 2009 amendments abrogated Rule 13(f), which "establishes Rule 15 as the sole rule governing amendment of a pleading to add a counterclaim." Adv. Comm. Notes to 2009 Amendments to Fed. R. Civ. P. 15. Under the previous version of the Federal Rules, the amendment of counterclaims had been controlled to some extent by Fed. R. Civ. P. 13(f) and also had been the subject of special attention by the courts. In Nolan v. City of Yonkers, No. 92 CIV. 6067 (KMW), 1990 WL 120685, at *4 (S.D.N.Y. March 19, 1996), the court concluded that the "[d]efendants did not have a right to assert new counterclaims unrelated to the amendment in the answers . . . in the same way that they had a right to assert counterclaims in their original answer." See also Elite Entm't, Inc. v. Khela Bros. Entm't, 227 F.R.D. 444, 446-47 (E.D. Va. 2005) (explaining that a new counterclaim "may be filed without leave only when the amended complaint changes the theory or scope of the case, and then, the breadth of the changes in the amended [counterclaim] must reflect the breadth or the changes in the amended complaint."). However, following the 2009 amendments, Rule 15 alone controls the amendment of counterclaims. Nolan and Elite Entertainment thus appear to be superseded to the extent that they are inconsistent with the current version of Rule 15. ***

A chronology of the operative facts:

January 29 — UPEK files complaint

February 2 — AuthenTec answers and counterclaims

February 23 — UPEK amends complaint, adding Count 12, alleging the unenforceability of one of the patents that is the subject of AuthenTec’s counterclaims (for infringement)

February 23 — UPEK also replies to AuthenTec’s counterclaims

March 12 — AuthenTec answers amended complaint and reasserts same counterclaims filed on February 2

March 29 — UPEK replies to reasserted counterclaims, added a 33rd affirmative defense alleging the unenforceability of another of the patents that is the subject of AuthenTec’s counterclaims

April 22 — AuthenTec refiles its answer unchanged and adds to its counterclaims a new claim for infringement and deletes claims for infringement of two other patents (one of which UPEK claimed to be unenforceable).

Issue: Did the filing of the amended complaint on restart the 24-day clock within which AuthenTec was entitled to amend its counterclaims? Held, no.

3. Practical effect of the amended pleading

It is undisputed that AuthenTec was entitled to amend its counterclaims as of right within twenty-four days of February 23, 2010, when UPEK filed its answer to the original counterclaims. AuthenTec contends that UPEK's amended complaint, filed on the same day, restarted the twenty-four-day clock. The Court concludes otherwise. "When an amended pleading does not add new parties, new claims, or significant new factual allegations, courts are often willing to allow the previously filed response to the original pleading [to] suffice." Justin Kraft & Kraft Piano Servs., LLC v. Arden, No. CV. 07-487-PK, 2009 WL 73869, at *7 (D. Or. Jan. 8, 2009) (quoting 3 Moore's Federal Practice § 15.17 (3d ed. 2008)). See also Stanley Works v. Snydergeneral Corp., 781 F. Supp. 659, 664-665 (E.D. Cal. 1990) (noting that "the option to file an [a]nswer to a [f]irst [a]mended [c]omplaint lies with the defendant"). While UPEK's amended complaint did add a new claim, that claim did not add new subject matter to the action or otherwise affect AuthenTec's original counterclaims. AuthenTec was not obligated to assert any new counterclaims in response to the amended complaint. For the same reasons, UPEK was not entitled to amend as of right its answer to AuthenTec's counterclaims after twenty-four days of its answer to the original counterclaims.

Nonetheless, leave granted to make the amendment.

Share this article:

Facebook
Twitter
LinkedIn
Email

Recent Posts

RICO Causation: Parents of Children with Disabilities Deprived In-Person Education and Services during the Pandemic Were Not Causally Injured by Teachers’ False Assurances to Federal Authorities That IDEA-Complaint Policies Were in Place, Which Caused Funds to Issue But Not to the Benefit of the Disabled Children — Damages Too Indirect — Proper Plaintiff Is U.S. Government — Private Injunctive Relief Under RICO Uncertain in Third Circuit

Sanctions: Rule 37(b)(2) Dismissal — Sixth Circuit Factors

Inherent Power Sanctions — Extrajudicial Misconduct: Sanctions Power Extends to Conduct Intended to Sabotage Court’s Ability to Adjudicate the Case Before It, Here, By Commencing State Court Actions Seeking to Enjoin the Federal Plaintiffs from Proceeding with Their Federal Litigation — Sanctions Fee Awards: The Factors Used For Calculating A Fee Award To A Prevailing Party Do Not Govern — Under Goodyear, the Relevant Inquiry Is Whether There Is A Sufficient Causal Link Between The Sanctioned Misconduct And The Fees Awarded

RICO: Members of Association-in-Fact Enterprise Must Act with a Common Purpose—Mere Allegation That Various Defendants Agreed at Different Times to Engage in Various Fraudulent Schemes Does Not Plausibly Support the Essential Inference, That They Acted with s Sufficiently Common Purpose

RICO Causation: (1) State’s Misrepresentation to Federal Government That It Was Providing Plaintiffs with Mandated Special Education Did Not Cause Plaintiffs’ Injury Because The Failure to Provide The Education Was Not Caused by the Fraud on the Federal Government — (2) The Three Factors for Assessing RICO Causation — (3) Limits of the Second Circuit’s Decision in Alix v. McKinsey That Causation Can Be Established Where A Fraud On The Judiciary “Or Other Governmental Entity” Resulted In A Resource Going To Someone Less Deserving

Rule 41(b): Five Factors to Be Weighed in Deciding Whether Dismissal Is Appropriate (Second Circuit) — Is A Finding of Bad Faith or Fault Required if Dismissal Is Without Prejudice? — Undecided If Truly Without Prejudice But It Is Required If the Without Prejudice Dismissal Will Act as a Dismissal on the Merits (Here, Because of the Statute of Limitations) — Failure To Consider A Lesser Sanction Than Dismissal Is Generally An Abuse Of Discretion

Spoliation Sanctions/Mootness: Stipulation Resolving “All Pending Discovery Disputes,” Which Are Enumerated, Does Not Moot Subsequent Sanctions Motion for ESI Spoliation — Postjudgment Sanctions Order Is Appealable When District Court Has Finally Disposed of Both Liability and Amount

Rule 37 Default Judgment Sanction: (1) Default Judgment Appropriate Only As a Last Resort, When Less Drastic Sanctions Would Not Ensure Compliance with the Court’s Orders — (2) Default Judgment Sanction Requires Willful or Bad Faith Failure to Obey Discovery Order — (3) Fugitive Defendant’s Failure to Appear at Court-Ordered, Remote Deposition Despite Court Warning That Sanctions Could Follow Disobedience Warrants Default Judgment — (4) District Court Afforded Wide Discretion in Interpreting Its Own Orders — (5) Filing a Notice of Appeal from a Non-Appealable Order (Here, a Discovery Order) Does Not Deprive the District Court of Jurisdiction over the Case

RICO and Injunctions: (1) State Court Actions Designed to Perpetuate and Monetize a RICO Violation Are Enjoinable under RICO, Even Though They Are Not Themselves Alleged to Be Predicate Acts [Note: Noerr Pennington Applies in RICO Actions] — (2) Although Civil RICO’s Text and Legislative History Fail to Reveal Any Intent to Override the Provisions of the Federal Arbitration Act, Arbitrations Are Enjoinable Under the “Effective Vindication” Doctrine Where They Operate As a Prospective Waiver of a Party’s Right to Pursue Statutory RICO Remedies — (3) Arbitration Findings May Be Given Collateral Estoppel Effect in a Civil RICO Action — (4) Injunction of Non-Corrupt State Court Litigations That Furthers a RICO Violation Are Enjoinable Under the Anti-Injunction Act’s “Expressly Authorized” Exception — (5) “The Irreparable Harm Requirement Is The Single Most Important Prerequisite For The Issuance Of A Preliminary Injunction” (Good Quote) — (6) When Injunction Is Based on “Serious Questions on the Merits” Rather Than “Likelihood of Success,” Court May Rely on Unverified Pleadings and Attached Exhibits to Assess the Merits, Unless the Opponent Has Raised Substantial Questions (Here, the Opponent Failed to Request an Evidentiary Hearing) — (7) Whether Amended Pleading Moots An Appeal Turns on Whether It Materially Changes the Substantive Basis for the Appeal — (8) Meaning of “In That” (“Used To Introduce A Statement That Explains Or Gives More Specific Information” About A Prior Statement)

RICO: Fraudulent Concealment Must Prevent Discovery of the Injury to Toll Statute of Limitations

Archives
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

New York Office

© 2024 Joseph Hage Aaronson LLC  
Disclaimer | Attorney Advertising Notice | Legal Notice