1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BLEPHEX, LLC, Case No.: 23-cv-578-RSH-SBC

12 Plaintiff/Counter-Defendant,

13 v. ORDER DENYING NULIDS, LLC’S MOTION FOR LEAVE TO FILE AN 14 NULIDS, LLC, AMENDED ANSWER & 15 Defendant/Counter-Plaintiff. COUNTERCLAIM

16

17 [ECF No. 54]

18

19 Defendant and Counter-Plaintiff NuLids, LLC, moves for leave to file an amended 20 answer and counterclaim. ECF No. 54. For the reasons below, the Court denies the motion. 21 I. BACKGROUND 22 Plaintiff and Counter-Defendant BlephEx, LLC (“BlephEx” or “Plaintiff”), is the 23 legal owner by assignment of

(“the ‘621 Patent”), related to 24 what BlephEx describes as “an electromechanical device [] with a soft and resilient tip that 25 safely contacts and removes debris from the eyelids and eyelid margin—encouraging 26 healing and preventing reoccurrence of disorders involving the eyelids and eyelid margin.” 27 1 Compl., ECF No. 1 ¶¶ 2, 12. Plaintiff alleges that Defendant and Counter-Plaintiff NuLids, 2 LLC (“NuLids” or “Defendant”), despite being aware of the BlephEx device, began selling 3 two similar devices—the “NuLids” and the “NuLids Pro”—which infringe on the ‘621 4 Patent. ECF No. 1 ¶¶ 32–38. Accordingly, BlephEx filed on March 31, 2023, a complaint 5 against NuLids asserting two claims for: (1) willful direct patent infringement under 35

(a), 284–85; and (2) willful inducement of patent infringement under 35

(b), 284–85. ECF No. 1 ¶¶ 72–91. 8 On September 26, 2023, the Court denied NuLids’s motion to dismiss. ECF No. 31. 9 After receiving an extension of time, NuLids timely filed its Answer on October 17, 2023. 10 ECF Nos. 37, 40. In its Answer, NuLids asserted eight affirmative defenses, and two 11 counterclaims for: (1) declaratory judgment of patent non-infringement; and (2) 12 declaratory judgment of patent invalidity. ECF No. 40 at 8–12. BlephEx timely filed its 13 Answer to NuLids’s counterclaims on November 7, 2023. ECF No. 44. 14 NuLids subsequently filed this motion for leave to amend its Answer and 15 Counterclaims on March 18, 2024, seeking to add a third counterclaim for tortious 16 interference with prospective economic advantage and to revise an affirmative defense. 17 ECF No. 54 at 8–9, 12–14. After receiving an extension of time, BlephEx timely filed its 18 opposition to NuLids’s motion. ECF No. 60. NuLids did not file a reply. 19 II. LEGAL STANDARD 20 Federal Rule of Civil Procedure 15 governs the amendment of pleadings. Outside of 21 certain specified time periods during which a party may amend a pleading as a matter of 22 course, Rule 15 allows a party to amend its pleadings “only with the opposing party’s 23 written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). A “court should freely give 24 leave when justice so requires.”

“Although the rule should be interpreted with ‘extreme 25 liberality,’ leave to amend is not to be granted automatically.” Jackson v. Bank of Haw., 26

, 1387 (9th Cir. 1990) (quoting United States v. Webb,

, 979 27 (9th Cir. 1981)). Any motion requesting a court order must “state with particularity the 1 grounds for seeking the order[.]” Fed. R. Civ. P. 7(b)(1)(B). 2 To determine whether to grant leave to amend, courts generally consider five factors 3 the Supreme Court established in Foman v. Davis: (1) undue delay, (2) the movant’s bad 4 faith or dilatory motive, (3) repeated failure to cure deficiencies by amendments previously 5 allowed, (4) undue prejudice to the opposing party, and (5) futility. Brown v. Stored Value 6 Cards, Inc.,

(9th Cir. 2020) (citing Foman v. Davis,

(1962)). “Absent prejudice, or a strong showing of any of the remaining Foman factors, 8 there exists a presumption under Rule 15(a) in favor of granting leave to amend.” Eminence 9 Cap., LLC v. Aspeon, Inc.,

(9th Cir. 2003). 10 III. ANALYSIS 11 NuLids’s motion seeks leave to file an amended answer “to introduce new evidence 12 that was recently uncovered by counsel . . . .” ECF No. 54 at 1. The Amended Answer 13 attached to NuLids’s motion adds a third counterclaim for tortious interference with 14 prospective economic advantage and revises a portion of its third affirmative defense of 15 patent invalidity. See ECF No. 54-2 at 8–9, 12–14. NuLids’s motion asserts two arguments 16 in support of amendment. 17 First, referring to the scheduling order in this matter, NuLids argues “this 18 amendment is permitted because the Court’s Order [] allows amended pleadings to be filed 19 by . . . March 18, 2024.” ECF No. 54 at 1 (citing ECF No. 51). While NuLids filed its 20 motion by the applicable scheduling order deadline, the scheduling order merely sets a 21 deadline for parties to file such motions—it does not entitle the parties to amendment as a 22 matter of right. See ECF No. 51 at 1 (“Any motion . . . to amend the pleadings, or to file 23 additional pleadings shall be filed by March 18, 2024.”). Federal Rule of Civil Procedure 24 7 still requires NuLids to “state with particularity the grounds for seeking the order” to 25 meet its burden for amendment. Fed. R. Civ. P. 7(b)(1)(B). 26 Second, NuLids maintains that “[t]he Court should grant Defendant leave to file the 27 Amended Answer because Defendant promptly sought leave to file an Amended Answer 1 ||after uncovering new evidence, necessitating the amendment. There is no bad faith or 2 ||dilatory motive on the part of the Defendant.” ECF No. 54 at 1. NuLids does not 3 ||meaningfully address the Foman factors in its motion. Indeed, NuLids does not mention 4 ||the relevant legal standard. Instead, NuLids asserts conclusory statements regarding only 5 ||two of the factors—undue delay and the movant’s bad faith or dilatory motive. NuLids 6 ||does not explain what new evidence it discovered, when it was discovered, or how the 7 || evidence provided NuLids with knowledge it did not have when it initially filed its Answer. 8 ||Even with the presumption in favor of amendment, this is insufficient to meet NuLids’s 9 || initial burden for amendment. See Kimber v. Grant, No. 16-cv-1472-BEN-AGS,

|/902139, at *3 (S.D. Cal. Mar. 6, 2017) (denying motion to amend because “Plaintiff’s 11 ||Motion to Amend lacks any explanation as to why he should be granted leave.”). 12 || Accordingly, the Court denies NuLids’s motion.! 13 CONCLUSION 14 For the above reasons, the Court DENIES NuLids’s motion for leave to file an 15 |}amended answer and counterclaims, ECF No. 54. 16 IT IS SO ORDERED. Johut © Uw 17 Dated: June 28, 2024 18 Hon. Robert S. Huie United States District Judge 19 20 21 22 ! In its response brief, BlephEx notes that NuLids failed to confer before filing this 3 motion. ECF No. 60 at 2. The Court has previously stricken NuLids’s filings for failure to 24 ||comply with the Local Civil Rules and Chambers Civil Procedures. See ECF Nos. 61, 62, 67, 68, 69. NuLids’s motion also fails to comply with several Local Civil Rules and 5 Chambers Civil Procedures. See, e.g., CivLR 5.1(a) (requiring specific formatting for 26 || motions); CivLR 5.1(j) (requiring specific information on a motion’s cover page); CivLR 7.1((1) (requiring motions to include a memorandum and notice); Chambers Civ. Pretrial 1 & Trial Proc. § IN(A)HB) (requiring conference of counsel and noticed motions). 28