Federal Judiciary

"I Have Good Cause, But It's A Secret" - Motion for Leave to Amend PICs Denied

By Michael C. Smith

Hill v. Abercrombie & Fitch, 2:07cv234 (Ed. Tex. April 17, 2009)
Judge: David Folsom
Holding: Motion for Leave to Amend PICs Denied
Plaintiff sought leave to amend its infringement contentions to add a website operated by Microsoft, which has intervened in this case.  (Plaintiff had previously accused some Microsoft products, but not its websites).  Judge Folsom detailed the general standards for infringement contentions and for when such contentions can be amended pursuant to P.R. 3-6 by the plaintiff showing "good cause" for the amendment. 
"On the facts of this case," Judge Folsom wrote, "the Court finds diligence and undue prejudice are the dispositive factors. Hill claims he was diligent because he sought leave to amend his infringement contentions shortly after Microsoft deployed the new website. The Court disagrees.  Although Hill was not tardy in filing this Motion, Hill, through his proposed amendment, seeks to assert an entirely new theory of infringement against Microsoft, without showing why this theory was unavailable to Hill prior to the amendment deadline in the scheduling order. Hill claims that he has diligently analyzed all of Microsoft?s websites but had no reason to believe any of them infringed until now. When asked to explain why this theory?direct infringement by a Microsoft website?was not available to Hill based on the websites Hill previously analyzed, Hill claimed the information was work-product and need not be disclosed.  Thus, Hill attempts to use the work-product doctrine as a shield to
protect itself from disclosing its previous analysis while, at the same time, using it as a sword to justify diligence." (Emphasis mine).
We can just stop reading right there, don't you think?

Full post as published by Eastern District of Texas Federal Court Practice on July 23, 2009 (boomark / email).