If you read past the title, you are a civil procedure nerd. The answer for you is as easy as two plus two. Rule 15! You can recite the standard in your sleep: “freely given when justice so requires.”

Not so fast. The liberal standard established in Rule 15 gives way to the more onerous standard established in Rule 16 when leave to amend is sought after the deadline to amend pleadings has passed. Rule 16 requires a showing of “good cause” to bring a motion. The difference between the two standards is sizeable and may have prevented patent owner Solutran, Inc. from asserting a claim for willful infringement against defendants U.S. Bancorp and Elavon, Inc.

Solutran moved to amend its complaint to add a claim for willful patent infringement several months after the deadline established in the scheduling order. Solutran argued that the defendants failed to produce relevant documents, and that the late-produced documents provided the grounds for alleging willfulness. Because Solutran moved to amend after the deadline provided in the scheduling order, the court applied the “good cause” standard established in Rule 16 instead of the “freely given” standard from Rule 15.

The good cause standard focuses on the moving party’s diligence. Solutran argued that it moved to add a claim for willful infringement as soon as it could after receiving documents from the defendants giving rise to a plausible claim. The court disagreed, and found that the evidence contained in the late-produced documents was not materially different from the evidence Solutran had before the deadline for motions to amend elapsed. Because Solutran was “on notice” of a potential claim, the court held that “it was thus incumbent upon Solutran to make some effort to compel production of relevant discovery, or seek to extend the deadline to amend pleadings.”

The situation Solutran faced is common. The deadline to add claims often occurs before the facts are fully developed. Even if you are not a civil procedure aficionado, remember that you lose the benefit of the “freely given” standard once the deadline for motions for leave to amend passes.

To read the decision in the Solutran case, click here.