United States District Court, W.D. North Carolina, Charlotte Division
DAVID C. KEESLER, Magistrate Judge.
THIS MATTER IS BEFORE THE COURT on "Plaintiff's Motion For Leave To File An Amended Complaint" (Document No. 25). This motion has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b), and immediate review is appropriate. Having carefully considered the motion and the record, and in consultation with Judge Whitney's chambers, the undersigned will grant the motion.
Eyetalk365, LLC ("Plaintiff") initiated this action with the filing of its "Original Complaint For Patent Infringement" (Document No. 1) on September 22, 2014. "Defendant LiveWatch Security, LLC's Answer And Affirmative Defenses To Plaintiff's Complaint And Counterclaims" (Document No. 16) was filed on November 4, 2014.
On December 18, 2014, the Honorable Frank D. Whitney issued a "Utility Patent Claim Construction Scheduling Order" (Document No. 20). In most pertinent part, the "...Scheduling Order" allowed for the filing of motions to amend the pleadings on or before January 28, 2015. (Document No. 20, p.6).
"Defendant LiveWatch Security, LLC's Motion For Judgment On The Pleadings" (Document No. 23) and Plaintiff's Motion For Leave To File An Amended Complaint" (Document No. 25) were filed on January 28, 2015.
On January 30, 2015, the Court issued a "Patent Claim Construction Scheduling Order" (Document No. 25) that allows for motions to amend the pleadings by May 6, 2015.
The pending motions are now ripe for review.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 15 applies to the amendment of pleadings and allows a party to amend once as a matter of course within 21 days after serving, or "if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." Fed.R.Civ.P. 15(a)(1). Rule 15 further provides:
(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.
Under Rule 15, a "motion to amend should be denied only where it would be prejudicial, there has been bad faith, or the amendment would be futile." Nourison Rug Corporation v. Parvizian, 535 F.3d 295, 298 (4th Cir. 2008) (citing HCMF Corp. v. Allen, 238 F.3d 273, 276-77 (4th Cir. 2001); see also, Foman v. Davis, 371 U.S. 178, 182 (1962). However, "the grant or denial of an opportunity to amend is within the discretion of ...