I write for the parties, who are familiar with the facts and procedural history of 1

this case, and therefore include only the background information that is relevant to the

disposition of this motion.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SYNTHES (U.S.A.), et al., : CIVIL ACTION

Plaintiffs :

:

v. : NO. 04-1235

:

GLOBUS MEDICAL, INC., et al., :

Defendants :

M E M O R A N D U M

STENGEL, J. March 21 , 2007

The plaintiffs in this case have moved to strike the defendants’ Second Amended

Answer, claiming it was filed without leave of court or without the plaintiffs’ written

consent in violation of Federal Rule of Civil Procedure 15(a). For the following reasons,

I will grant the motion in its entirety.

I. BACKGROUND1

On July 18, 2006, after seeking leave of court, the plaintiffs filed their Third

Amended Complaint for the sole purpose of adding a Computer Fraud and Abuse Act

claim against a new defendant, former Synthes employee Lawrence Binder. The

defendants filed their Answer to this Complaint on August 4, 2006. A couple of weeks

later, the plaintiffs moved to strike certain of the defendants’ affirmative defenses and to

dismiss the defendants’ counterclaims. On September 5, 2006, the defendants responded

Case 2:04-cv-01235-LS Document 184 Filed 03/22/07 Page 1 of 5
2

to that motion, and in addition, filed an Amended Answer to the plaintiffs’ Third

Amended Complaint which added an abuse of process counterclaim. 

On September 20, 2006, the plaintiffs filed a reply brief in support of their motion. 

I granted the defendants leave to file a sur-reply, which they did on October 10, 2006. In

addition to the sur-reply, however, the defendants filed a Second Amended Answer

without leave of court and without the plaintiffs’ consent. This pleading is identical to

the defendants’ first Amended Answer, with the exception of an additional 29 paragraphs

of allegations in support of their “abuse of process” counterclaim. The plaintiffs have

moved that this pleading be stricken in its entirety as a violation of the Federal Rules of

Civil Procedure.

II. DISCUSSION

Federal Rule of Civil Procedure 15(a) provides that “a party may amend the party’s

pleading once as a matter of course at any time before a responsive pleading is served. . . .

Otherwise a party may amend the party’s pleading only by leave of court or by written

consent of the adverse party; and leave shall be freely given when justice so requires.” 

See FED.R.CIV.P. 15(a) (emphasis added). 

Thus, the defendants did not require leave of court or the written consent of the

plaintiffs to file the Amended Answer on September 5, 2006 because the plaintiffs had

not yet filed a responsive pleading to the defendants’ earlier Answer. However, having

expended their one amendment provided by Rule 15(a), the defendants were required to

Case 2:04-cv-01235-LS Document 184 Filed 03/22/07 Page 2 of 5
 The defendants argue that leave was not required because the plaintiffs had not yet filed 2

a responsive pleading to the defendants’ first Amended Answer. Rule 15(a) clearly states,

however, that a party may amend its pleading once as a matter of course before a responsive

pleading is filed. 

3

seek leave of court or to obtain the written consent of the plaintiffs before they filed their

Second Amended Answer on October 10, 2006. I find that because the defendants failed

to do so, their Second Amended Answer was improperly filed. 

Although they do not concede that the pleading violates Rule 15(a), the 2

defendants ask in the alternative that I consider granting them leave to amend their

Answer for this second time. While Rule 15(a) provides that leave to amend should be

“freely given,” I have discretion to deny a request to amend if it is apparent from the

record that (1) the moving party has demonstrated undue delay, bad faith, or dilatory

motives; (2) the amendment would be futile; or (3) the amendment would prejudice the

other party. Hill v. City of Scranton, 411 F.3d 118, 134 (3d Cir. 2005). Leave to amend,

therefore, is generally granted unless the underlying circumstances of a particular case

render amendment inappropriate. Arthur v. Maersk, Inc., 434 F.3d 196, 204 (3d Cir.

2006) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). The Third Circuit Court of

Appeals has repeatedly recognized that prejudice to the non-moving party is the

touchstone for the denial of an amendment. Id. Ultimately, however, the Third Circuit

has left the decision of whether to grant or deny a motion for leave to amend within the

sound discretion of the district court. Cureton v. Nat’l Collegiate Athletic Ass’n, 252

F.3d 267, 272 (3d Cir. 2001).

Case 2:04-cv-01235-LS Document 184 Filed 03/22/07 Page 3 of 5
4

Delay alone is insufficient to justify denying a party’s motion for leave to amend

its pleading. Adams v. Gould, Inc., 739 F.2d 858, 868 (3d Cir. 1984). Undue delay, by

contrast, is a sufficient basis for a district court’s decision to deny leave to amend. See

Foman v. Davis, 371 U.S. at 182. Delay becomes “undue” when it places an

“unwarranted burden on the court.” Cureton v. Nat’l Collegiate Athletic Ass’n, 252 F.3d

at 273 (quoting Adams v. Gould, Inc., 739 F.2d at 868). In particular, a district court may

deny leave to amend a pleading where the moving party has: (1) failed to utilize previous

opportunities to amend; and (2) has not offered any explanation for this failure. Id. (the

question of undue delay requires that courts focus on the moving party’s reasons for not

amending sooner).

Globus has failed to utilize its previous opportunities to amend. As discussed

above, Globus properly filed an Amended Answer on September 5, 2006. Thirty-five

days later, Globus filed a Second Amended Answer without leave of court and without

the written consent of the plaintiffs. Globus offers no explanation of why the newlyadded allegations were not and could not have been included in the first Amended

Answer, especially when Globus has known of the alleged facts in the latest abuse of

process counterclaim for at least a year, and definitely since the filing of their original

Answer and Counterclaims. 

I will grant the motion to strike the defendants’ Second Amended Answer as

improperly filed, and deny Globus’ request to amend. An appropriate Order follows. 

Case 2:04-cv-01235-LS Document 184 Filed 03/22/07 Page 4 of 5
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SYNTHES (U.S.A.) and : CIVIL ACTION

SYNTHES SPINE COMPANY, L.P. :

Plaintiffs :

:

v. : NO. 04-1235

:

GLOBUS MEDICAL, INC., et al. :

Defendants :

O R D E R

STENGEL, J.

AND NOW, this 21st day of March, 2007, upon consideration of the

plaintiffs’ motion to strike the defendants’ Second Amended Answer and Counterclaims

(Document #160), the defendants’ response thereto (Document #168), and after a hearing

on the motion with all parties present, it is hereby ORDERED that the motion is

GRANTED. 

BY THE COURT:

 /s/ Lawrence F. Stengel 

LAWRENCE F. STENGEL, J.

Case 2:04-cv-01235-LS Document 184 Filed 03/22/07 Page 5 of 5