Opinion
21-cv-08534-SI
06-09-2022
CYBOENERGY, INC., Plaintiff, v. NORTHERN ELECTRIC POWER TECHNOLOGY, INC., Defendant.
ORDER MOOTING PENDING MOTION TO DISMISS RE: DKT. NO. 24
SUSAN ILLSTON United States District Judge.
On April 11, 2022, defendant Northern Electric Power Technology, Inc. filed a motion to dismiss the patent infringement complaint filed by plaintiff CyboEnergy, Inc. Dkt. No. 24. Twenty eight days later, on May 9, 2022, CyboEnergy filed an opposition along with an Amended Complaint withdrawing its claims for pre-filing indirect and willful infringement. Dkt. Nos. 33 (opposition), 32 (amended complaint). Defendant correctly notes the Amended Complaint is untimely under Fed.R.Civ.P. 15(a). Dkt. No. 34.
Although plaintiff filed after the 21 days permitted by Rule 15, the Court will excuse the timeliness issue in the interest of judicial economy and therefore consider the Amended Complaint properly filed. The motion to dismiss is therefore MOOT. Defendants may file a renewed motion to dismiss no later than June 24, 2022 and may rely on the same moving papers as the original motion to whatever extent it wishes. The hearing currently scheduled for June 24, 22 is VACATED.
IT IS SO ORDERED.