United States District Court, E.D. Wisconsin
MILWAUKEE ELECTRIC TOOL CORPORATION, METCO BATTERY TECHNOLOGIES LLC, AC MACAO COMMERCIAL OFFSHORE LIMITED, and TECHTRONIC INDUSTRIES CO. LTD., Plaintiffs,
CHERVON NORTH AMERICA INC., Defendant.
STADTMUELLER U.S. DISTRICT JUDGE.
March 15, 2017, Plaintiffs filed an expedited motion under
Civil Local Rule 7(h) for leave to amend their complaint to
add Chervon (HK) Limited (“Chervon HK”), a
Chinese entity located in Hong Kong, as a defendant in this
matter. (Docket #149). Chervon HK is, according to
Plaintiffs, the parent to Defendant Chervon North America,
Inc. (“Chervon NA”). Id. at 1. Chervon
HK allegedly made sales of the infringing products at issue
here. Id. Because Plaintiffs' motion was filed
as expedited under Civil Local Rule 7(h), its argument in
support of amendment is scant. See Civ. L. R. 7(h)
(limiting argument in support to three pages). Plaintiffs
claim that joining Chervon HK will not change the substantive
issues raised in this case, nor will it require additional
discovery. Id. Rather, Plaintiffs seek merely to add
a defendant who is related to Chervon NA and who also
participated in the alleged infringement of Plaintiffs'
patents. Id. at 1-3.
opposes the motion. (Docket #155). First, it says that the
amendment is untimely, since it comes two and a half years
after the suit was filed, although there is evidence that
Plaintiffs knew of Chervon HK's participation in the
relevant conduct much earlier than that. Id. at 1-2.
Second, Chervon NA contends that amendment would be unfairly
prejudicial, citing the delay in seeking amendment and the
delay the proposed amendment would cause. Id. at
2-3. In particular, Chervon NA notes that serving Chervon HK
in China could, under the relevant treaties, take as long as
six months, which would delay the case well past the current
dispositive motion deadline and probably past the trial date,
which is set for October 16, 2017. Id. Finally,
Chervon NA claims that the proposed amendment would be
futile, as Plaintiffs could not establish that personal
jurisdiction or proper venue exists over Chervon HK in this
basis of these arguments, the Court must deny Plaintiffs'
motion. Federal Rule of Civil Procedure 15(a)
provides that leave to amend a complaint “shall be
freely given when justice so requires.” Fed.R.Civ.P.
15(a). Courts favor granting leave to amend, but they act
within their discretion to deny such leave when there is a
substantial reason to do so.
Creations, Inc. v. Paliafito Am., Inc., 830 F.Supp.
1213, 1216 (E.D. Wis. 1993). This includes undue delay, bad
faith, dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, or futility of the amendment.
Foman v. Davis, 371 U.S. 178, 182 (1962).
while Plaintiffs may be correct that Chervon's foreign
parent had a part to play in the alleged infringement, it has
simply been far too long to permit a change in the cast of
this case. Normally delay is not itself a sufficient basis
for denying a motion to amend, Feldman v. Allegheny
Int'l, Inc., 850 F.2d 1217, 1225 (7th Cir.1988), but
“the longer the delay, the greater the presumption
against granting leave to amend.” Tamari v. Bache
& Co. S.A.L., 838 F.2d 904, 908 (7th Cir. 1988);
Bohen v. City of E. Chicago, Ind., 799 F.2d 1180,
1184 (7th Cir. 1986) (“[C]onsiderations of delay and
prejudice may preclude automatic grant of an
amendment.”). Chervon NA's evidence demonstrates
that Plaintiffs knew that Chervon HK was involved at least
since the beginning of this case over two years ago. Despite
this, only now that Chervon NA's defense is
revealed-namely, that it “facilitated” the
infringement but is not itself liable-do Plaintiffs seek to
join its foreign parent. Without commenting upon the merit of
Chervon's NA's theory, the Court is not persuaded
that, on the facts known to it from the very start of this
litigation, Plaintiffs should not have foreseen the wisdom in
joining Chervon HK much earlier. Select Creations,
830 F.Supp. at 1217 (given a long passage of time, “the
party seeking leave to amend must justify that request by
more than invocation of the concept of the liberality of Rule
15(a)”). Amendment under Rule 15(a) cannot be used as
“a license for carelessness or gamesmanship.”
Feldman v. Allegheny Int'l, Inc., 850 F.2d 1217,
1225 (7th Cir. 1988).
although the case has lived much of its life under a stay
during proceedings before the U.S. Patent and Trademark
Office, the Court, consistent with its usual practice, set an
aggressive schedule for the final resolution of this matter
more than two months ago. (Docket #137). Yet Plaintiffs
waited until now to seek to join a foreign defendant whose
participation would likely push back the Court's schedule
substantially. Notably, this case is unlike Clark v.
Universal Builders, Inc., 501 F.2d 324, 339-40 (7th Cir.
1974), where the district court erred in denying leave to
join as defendants the officers and directors of the
closely-held corporate defendants, since those individuals
had “constructive notice of the action and indeed were
active participants in it since its inception.” In the
present case, although there is a relationship between these
two Chervon entities, and although it appears Chervon HK has
been aware of this action, the link between Chervon HK and
Chervon NA is far more tenuous than the connection between a
closely held corporation and its directors.
the Court's duties under Federal Rule of Civil Procedure
1 to construe all the Rules in order to secure the
“just, speedy, and inexpensive determination of every
action, ” the Court cannot stretch even the liberal
standards of Rule 15 as far as Plaintiffs request. See
Amendola v. Bayer, 907 F.2d 760, 764 (7th Cir. 1990) (no
abuse of discretion to deny motion for leave to amend
complaint where plaintiff gave no good reason for failure to
earlier seek amendment and because granting leave
“would impair the public interest in prompt resolution
of legal disputes”); Perrian, 958 F.2d at 195
(“The burden to the judicial system can justify a
denial of a motion to amend ‘even if the amendment
would cause no hardship at all to the opposing
party.'”) (quoting Tamari, 838 F.2d at
908). The motion will, therefore, be denied.
IT IS ORDERED that Plaintiffs' expedited
motion for leave to amend their complaint (Docket #149) be
and the same is hereby DENIED.
On March 27, 2017, Plaintiffs filed a
letter attempting to address Chervon's arguments and
requesting oral argument on its motion. (Docket #164). The
letter reads like a reply brief, but by invoking Civil Local
Rule 7(h), Plaintiffs deprived themselves of the ability to
file such a brief absent leave of the Court. Civ. L. R. 7(h).
Plaintiffs did not designate the letter as a reply, nor ask
for leave to file it, and so the Court is left with a
document filed out of the normal stream of expedited motion
The Court will neither consider the arguments made in
the letter nor grant the request for oral argument. First,
because Plaintiffs chose to operate under the strictures of
Rule 7(h), Plaintiffs cannot escape those strictures now that
the complexity of the relevant issues has come into full
view. Nor would it be fair to Chervon NA, which was forced to
file a 3-page opposition in conformity with Rule 7(h).
Finally, the Court notes that oral argument is almost never
permitted in this branch of the Court, and deciding whether
to grant it rests in the Court's discretion. Id.
7(e). No cause exists to entertain oral argument on this
motion, particularly not on Plaintiffs' stated reason
that it needs to ...