The opinion of the court was delivered by: Dean D. Pregerson United States District Judge
ORDER DENYING DEFENDANT WAYPORT, INC.'S MOTION FOR LEAVE TO AMEND ANSWER AND COUNTERCLAIMS [Docket No. 507]
Presently before the court is Defendant Wayport, Inc.'s Motion for Leave to Amend Answer and Counterclaims to Clarify Laches Defense and Add Related Estoppel Defense ("Motion"). Having reviewed the parties' moving papers and heard oral argument, the court denies the Motion and adopts the following Order.
First, the court finds it unnecessary for Wayport to amend its Answer and Counterclaims ("Answer") to clarify its laches defense.*fn1
In its Answer, Wayport contends that "Nomadix is barred from recovering pre-filing damages with respect to at least the '892 and '894 patents under the doctrine of laches." (Answer at ¶ 330 (emphasis added); see also id. (alleging that "Nomadix has unreasonably and inexcusably delayed in bringing suit under at least the '892 and '894 patents" (emphasis added)).) By asserting a laches defense as to "at least" two of the patents at issue, Wayport has adequately alleged the defense as to the other patents as well. The court therefore deems that the defense applies to all patents at issue.
Second, the court concludes that Wayport has not shown good cause to modify the court's scheduling order and amend its Answer to add an equitable estoppel defense.*fn2 See Fed. R. Civ. Proc. § 16(b) (requiring good cause to modify a scheduling order); Wells Fargo Bank, N.A. v. Am. Nat'l Ins. Co., No. CV 09-01840, 2010 WL 3632787, at *2 (C.D. Cal. Sept. 13, 2010) ("A party may establish good cause by demonstrating that it was unable to comply with the scheduling order's deadlines due to matters that could not have reasonably been foreseen at the time of the issuance of the scheduling order, and that it was diligent in seeking an amendment." (internal quotation marks omitted)).
Wayport argues that it has good cause because it recently learned facts, not reasonably foreseen, that support an equitable estoppel defense. In particular, Nomadix allegedly produced "emails demonstrating that Nomadix orchestrated meetings with Wayport in 2005 in the hopes of entering a business relationship, without raising any of the asserted patents." (Mot. at 3.) Similarly, a 2005 Nomadix email allegedly informed Wayport that an earlier Nomadix letter only requested a "self-assessment" as to patent infringement, and "should not be construed as a plan" to press an infringement claim. (Reply at 5.) Thus, Wayport now contends that it reasonably relied on Nomadix's misleading conduct, indicating that Nomadix did not intend to enforce its patents.*fn3
The court finds, however, that Wayport could have reasonably foreseen this equitable estoppel defense. Wayport was, of course, party to any past misleading conduct by Nomadix that induced reliance by Wayport. As alleged here, Wayport was the recipient of Nomadix's emails proposing business relations and suggesting that Nomadix did not intend to sue. Wayport therefore already had these facts in its possession. Wayport argues that it "lost" possession of these facts, because its employees at the time no longer work for Wayport. But Wayport still knew, from Nomadix's 2004 letter and Wayport's own laches defense, that its case would involve facts from this time period. The court therefore finds that Wayport had an affirmative obligation to timely investigate these facts with its own former employees, if it wanted to pursue such a dispositive defense as equitable estoppel.*fn4 Wayport apparently failed to do so, and is now too late - on the eve of the December 2, 2011 close of fact discovery, and more than a year after the June 21, 2010 deadline to amend.*fn5
For all these reasons, the court DENIES Wayport's Motion to Amend.