1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 BELL NORTHERN RESEARCH, LLC, Case No.: 18-CV-2864-CAB-BLM

11 Plaintiff,

ORDER GRANTING MOTION TO

12 v. AMEND ANSWER TO COMPLAINT

13 LG ELECTRONICS, INC. et al.,

14 Defendants. [Doc. No. 43] 15 16 AND RELATED COUNTERCLAIMS 17 18 19 Defendants have filed a motion for leave to amend their answer to add allegations to 20 their third affirmative defense of license and exhaustion, and to add a thirteenth affirmative 21 defense of lack of standing. Plaintiff does not oppose the amendment to the third 22 affirmative defense, but it opposes the addition of the lack of standing defense solely on 23 the grounds of futility. Plaintiff’s argument in support of its opposition focuses primarily 24 on whether Defendants can prove facts sufficient to succeed on the lack of standing defense 25 and not on whether the defense is adequately pled. Based on the evidence in the record 26 and taking into consideration the possibility of additional evidence unearthed in discovery, 27 the Court is not persuaded that Defendants’ lack of standing defense faces inevitable defeat 28 on summary judgment. Cf. California v. Neville Chem. Co., 358 F.3d 661, 673-74 (9th 1 || Cir. 2004) (“Futility includes the inevitability of a claim’s defeat on summary judgment.”’) 2 || (quoting Johnson v. Am. Airlines, Inc., 834 F.2d 721, 724 (9th Cir. 1987)). Accordingly, 3 || Defendants’ motion is GRANTED. Defendants shall file their First Amended Answer and 4 ||Counterclaims on or before September 5, 2019. 5 It is SO ORDERED. 6 || Dated: September 3, 2019 € Z 7 Hon. Cathy Ann Bencivengo 8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28