Bedrock Computer Technologies, LLC v. Softlayer Technologies, Inc. et al

Filing 101

MOTION to Amend/Correct #1 Complaint, by Bedrock Computer Technologies, LLC. (Attachments: #1 Exhibit 1, #2 Text of Proposed Order)(Baxter, Samuel)

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Bedrock Computer Technologies, LLC v. Softlayer Technologies, Inc. et al Doc. 101 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION BEDROCK COMPUTER TECHNOLOGIES LLC, Plaintiff, v. SOFTLAYER TECHNOLOGIES, INC., et al. Defendants. CASE NO. 6:09-cv-269 Jury Trial Demanded PLAINTIFF BEDROCK COMPUTER TECHNOLOGIES LLC'S MOTION FOR LEAVE TO FILE ITS FIRST AMENDED COMPLAINT Pursuant to Fed. R. Civ. P.15(a), Plaintiff Bedrock Computer Technologies LLC ("Bedrock") respectfully requests leave to file its First Amended Complaint. proposed First Amended Complaint is attached as Exhibit 1. INTRODUCTION On June 16th, 2009, Bedrock filed a Complaint with the Court alleging patent infringement against ten defendants. See Dkt No. 1. Inc. was one of those ten defendants. On September 9th, 2009, LLC filed an answer and counterclaims to the Complaint, informing Bedrock and the Court that LLC was "incorrectly sued as, Inc." See Dkt. No. 68. Bedrock's proposed amendment seeks only to change Inc. to LLC. Because the proposed change is simply a correction to the LLC's name, and because LLC has proceeded litigating this matter as if Bedrock had not misidentified its legal name, see, e.g., Dkt Nos. 68, 69 and 85, no delay or hardship would be created by correctly identifying LLC in the suit as an alleged infringer. Bedrock's Dallas 245354v1 ARGUMENT Fed. R. Civ. P. 15(a) states that leave to amend "shall be freely given when justice so requires." This rule "evinces a bias in favor of granting leave to amend." Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 597 (5th Cir. 1981); see Lyn-Lea Travel Corp. v. Am. Airlines, Inc., 283 F.3d 282, 286 (5th Cir. 2002). Determining whether to grant leave rests within the sound discretion of the trial court. See Southmark Corp. v. Schulte Roth & Zabel (In re Southmark Corp.), 88 F.3d 311, 314 (5th Cir.1996). However, this discretion should not permit denial of leave if the district court lacks a "substantial reason." Jamieson v. Shaw, 772 F.2d 1205, 1208 (5th Cir. 1985). In considering whether to grant leave to amend, a court may consider such factors as undue delay, bad faith or 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, and futility of amendment. See Foman v. Davis, 371 U.S. 178, 182 (1962). There is no undue delay, bad faith, or dilatory motive on Bedrock's part. The parties have not yet submitted their joint Docket Control or Discovery Orders, and the trial date is more than a year away. See September 14th, 2009 Order (Dkt. No. 78). CONCLUSION For the reasons set forth above, Bedrock respectfully requests that the Court grant its motion for leave to amend. Dallas 245354v1 2 DATED: October 30, 2009 Respectfully submitted, McKOOL SMITH, P.C. _/s/ Sam F. Baxter_________ Sam F. Baxter, Lead Attorney Texas Bar No. 01938000 McKOOL SMITH, P.C. 104 E. Houston Street, Suite 300 P.O. Box 0 Marshall, Texas 75670 Telephone: (903) 923-9000 Facsimile: (903) 923-9099 Douglas A. Cawley Texas Bar No. 04035500 Theodore Stevenson, III Texas Bar No. 19196650 J. Austin Curry Texas Bar No. 24059636 McKOOL SMITH, P.C. 300 Crescent Court, Suite 1500 Dallas, Texas 75201 Telephone: 214-978-4000 Facsimile: 214-978-4044 Robert M. Parker Texas Bar No. 15498000 Robert Christopher Bunt Texas Bar No. 00787165 PARKER, BUNT & AINSWORTH, P.C. 100 E. Ferguson, Suite 1114 Tyler, Texas 75702 Telephone: 903-531-3535 Facsimile: 903-533-9687 E-mail: E-mail: ATTORNEYS FOR PLAINTIFF BEDROCK COMPUTER TECHNOLOGIES LLC Dallas 245354v1 3 CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was filed electronically in compliance with Local Rule CV-5(a). As such, this document was served on all counsel who have consented to electronic service on this, the 30th day of October, 2009. Local Rule CV53(a)(3)(A). CERTIFICATE OF CONFERENCE On October 27th, 2009, Bedrock asked the Defendants who have filed an answer in this case whether they would oppose Bedrock's Motion for Leave to File its First Amended Complaint. Defendants Softlayer Technologies Inc., Yahoo! Inc, MySpace Inc. Inc., PayPal Inc., AOL LLC, and CME Group Inc. indicated that they would not oppose. As of the time of filing this motion, Bedrock has not heard from Defendants Google Inc. and LLC. Bedrock assumes, therefore, that Google Inc. and LLC oppose this Motion. /s/ Austin Curry Austin Curry Dallas 245354v1 4

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