NACCO Industries, Inc. and HB-PS Holding Co., Inc. v. Applica Inc., (Del. Ch., May 7, 2008), read opinion here.

The facts of this case involve a complaint that was initially amended once after a motion to dismiss was filed but prior to the opening brief. The motion to dismiss came after expedited discovery but also after a request for emergency injunctive relief was abandoned. A second motion to dismiss with an opening brief was filed after the first amended complaint was filed. This implicates both Chancery Court Rule 15(a) and Chancery Court Rule 15(aaa), the later specifically designed to address this situation. As the court explained:

Rule 15(aaa) contemplates amendments or motions for leave to amend after a dismissal motion is filed in only two situations: “(i) before the due date of a brief responding to the motion to dismiss, and (ii) after the court decides that dismissal is warranted.”

 “In the first case, the motion is governed by the liberal standards of Rule 15(a). In the second, the more stringent standard of Rule 15(aaa) applies . . . .” In this case, the plaintiffs have filed their motion for leave to amend instead of filing a responsive brief, thereby bringing this case under Rule 15(a)’s liberal standards. Rule 15(a) provides that motions for leave to amend “shall be freely given when justice so requires.” (citations omitted.)

The court denied the request for fees based on the following reasoning:

Further, the defendants’ request that the plaintiffs’ pay the defendants’ costs and legal fees incurred in the drafting the defendants’ prior motion to dismiss will be denied. This is not a case, such as Franklin Balance or Lillis, in which the plaintiffs sought leave to amend only after defending their pleading with full briefing and oral argument. FN. 12


FN 12.   2006 WL 3095952, at *6; 896 A.2d at 879.