BabyAge..com, Inc. v. Leachco, Inc.

Filing 16

MOTION to Amend/Correct 11 Answer to Counterclaim by BabyAge..com, Inc.. (Attachments: # 1 amended answer# 2 marked-up amended answer)(Smolow, Mitchell)

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA BABYAGE.COM, INC., Plaintiff-Counterclaim Defendant v. LEACHCO, INC., Defendant-Counterclaim Plaintiff/ Third Party Plaintiff and JAMIE S. LEACH, Counterclaim Plaintiff/ Third Party Plaintiff v. JOHN M. KIEFER, JR., Third Party Defendant : : : : : : : : : : : : : : : : : : : CIVIL ACTION NO. 3:07-cv-01600-ARC Judge A. Richard Caputo Filed Electronically PLAINTIFF / COUNTERCLAIM DEFENDANT'S MOTION TO AMEND ITS ANSWER Plaintiff / Counterclaim Defendant BabyAge.com, Inc. ("BabyAge") by and through its undersigned counsel does hereby move this Honorable Court for leave to file an amended Answer pursuant to F.R.C.P. 15(a) and in support thereof sets forth the following. {00005365.DOCX; 1 } 1. On April 3, 2007, by facsimile, Leachco, Inc. ("Leachco") accused BabyAge of infringing U.S. Patent No. 6,760,934, demanding BabyAge cease and desist selling its Cozy Comfort pillow and pay money damages to Leachco. 2. BabyAge denied any wrongdoing and through its counsel attempted to explain to Leachco why its Cozy Comfort pillow is non-infringing. 3. When it became apparent that Leachco would not alter its demands, on August 30, 2007, BabyAge filed the present declaratory judgment action. 4. Leachco and Counterclaim Plaintiff Jamie S. Leach ("Leach") counterclaimed, adding Counterclaim Defendant John M. Kiefer, Jr. BabyAge timely filed its Answer on November 20, 2007. 5. 6. Leachco and Leach object to paragraphs 27, 30 and 37-39 of the Answer. On November 28, 2007, the same day Leachco and Leach refused to grant permission for BabyAge to amend its Answer, Leachco and Leach filed a Motion To Strike and its brief in support thereof. 7. Concurrent with this Motion, BabyAge has timely filed its brief in opposition to the Motion To Strike. 8. Pursuant to Local Rule 15.1(a), a proposed Amended Answer is attached hereto. -2{00005365.DOCX; 1 } 9. Pursuant to L.R. 15.1(b), a marked up copy of the original Answer is also attached. Wherefore, BabyAge respectfully requests that this Honorable Court grant leave to amend its Answer. Respectfully Submitted, Mitchell A. Smolow PA 80307 720 Hampton Road Shavertown, PA 18708 570-714-4000 (O) 570-696-3320 (F) msmolow@smolowlaw.com Attorney for Plaintiff-Counterclaim Defendant Date: December 11, 2007 -3{00005365.DOCX; 1 } UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA BABYAGE.COM, INC., Plaintiff-Counterclaim Defendant v. LEACHCO, INC., Defendant-Counterclaim Plaintiff/ Third Party Plaintiff and JAMIE S. LEACH, Counterclaim Plaintiff/ Third Party Plaintiff v. JOHN M. KIEFER, JR., Third Party Defendant : : : : : : : : : : : : : : : : : : : CIVIL ACTION NO. 3:07-cv-01600-ARC Judge A. Richard Caputo Filed Electronically ORDER Upon Plaintiff / Counterclaim Defendant's motion and pursuant to F.R.C.P. 15(a), it is hereby ORDERED that Plaintiff / Counterclaim Defendant BabyAge.com, Inc. be granted leave to file its Amended Answer. _______________________________ A. Richard Caputo, J. Dated: __________ ___, 200_ -4{00005365.DOCX; 1 }