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Western District Denies Hipcricket's Motion to File Additional Counterclaim

On Feb. 20, the Western District denied defendant Hipcricket, Inc.’s motion for leave to file a supplemental counterclaim against plaintiff Cricket Communications, Inc. Hipcricket sought to assert that Cricket’s alleged refusal to connect Hipcricket’s “short codes” to Cricket’s telecommunications network violated the nondiscrimination policy of the Telecommunications Act of 1996 and constituted an illegal restraint of trade under Section 1 of the Sherman Act.

The parties’ discovery deadline in this trademark and unfair competition suit was Jan. 5. STL’s summary of Cricket’s claims is available here. Trial is scheduled for May 4.

Western District Judge Marsha Pechman rejected Hipcricket’s argument that no additional discovery would be required to determine the proposed counterclaim. The court found: “Reopening discovery would disrupt the pretrial and trial schedule, increase costs to the parties, and unfairly prejudice Cricket.

“Moreover, ‘[w]hile leave to permit supplemental pleading is favored, it cannot be used to introduce a separate, distinct, and new cause of action.’ Hipcricket’s proposed supplemental counterclaim involves new and distinct antitrust and telecommunications claims that are related to the underlying trademark claims ‘only in a very broad sense.’ These claims will require legal briefing beyond the scope of the current litigation, and allowing them ‘would inject an additional layer of complexity and delay into an already complex action.’ There are no ‘technical obstacles’ preventing Hipcricket from bringing a new, separate action on these claims.”

The case cite is Cricket Communications, Inc. v. Hipcricket, Inc., 2009 WL 426618, No. 08-908 (W.D. Wash. Feb. 20, 2009) (Pechman, J.).

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