Terran Biosciences, Inc. v. Compass Pathfinder Limited

OCR transcription for search; preserved printed pages are authoritative

Case 1:22-cv-01956-ELH Document 326 Filed 12/19/25 Page1of61

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

TERRAN BIOSCIENCES, INC., et al.
Plaintiffs,

V.
COMPASS PATHFINDER Civil Action No. ELH-22-1956
LIMITED, EKATERINA
MALIEVSKAIA, M.D., and
GEORGE GOLDSMITH

Defendants.

MEMORANDUM OPINION

In this contentious trade secret case, filed in August 2022, plaintiffs Terran Biosciences,
Inc. (“Terran”), a biotechnology company with its principal place of business in New York; the
University of Maryland, Baltimore (“UMB”); and Scott Thompson, Ph.D., formerly Chair of the
Department of Physiology at UMB’s School of Medicine, have filed suit against defendant
Compass Pathfinder Limited (“Compass”), a biotechnology company incorporated in England and
Wales. In general, plaintiffs claim that in 2019 Compass fraudulently misappropriated their
“Psilocybin Trade Secrets,” which pertain to a mechanism to reduce or eliminate the hallucinatory
effects of psilocybin while retaining its antidepressant benefits.

Almost three years after suit was filed, on May 19, 2025, plaintiffs filed “Motion For
Joinder Of Additional Parties And For Leave To File Fourth Amended Complaint,” pursuant to
Fed. R. Civ. P. 20(a)(2). ECF 157 (“Fourth Motion”). In the Fourth Motion, plaintiffs sought to
add as defendants two individuals who were co-founders of Compass (ECF 157 at 5) and

executives of the company when suit was filed, but who had “since left their roles” with Compass.

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

2
Id.
Id.
Compass opposed the Fourth Motion as untimely, lodged in bad faith, and prejudicial. ECF
160. Plaintiffs replied. ECF 181. For the reasons stated in my Memorandum Opinion (ECF 197)
and Order (ECF 198) of July 11, 2025, I granted the Fourth Motion.
T 	is the operative complaint. Critically,
as to Compass, the FAC realleges the same facts and claims that were previously asserted.
Compare 	ECF 81 (Third Amended Complaint) with ECF 199. Moreover, earlier versions of the
suit, filed when Malievskaia and Goldsmith were associated with Compass, were replete with
allegations concerning their alleged misconduct. But, they had not been named as defendants,
presumably because of their affiliation with Compass, arguably rendering it unnecessary to sue
them individually. 	Plaintiffs sought to add Malievskaia and Goldsmith as defendants only after
their affiliation with Compass came to an end.
In 	response to the FAC, filed on July 25, 2025 (ECF 208), Compass asserted
counterclaims for the first time (id. 	at 17-29), and did so beyond the deadline of May 19, 2025, as
established in the Scheduling Order of April 24, 2025. 	See 	ECF 146. 	The New Defendants
answered the FAC. ECF 212; ECF 213. Although the New Defendants have the same counsel as
Compass, they did not lodge any counterclaims. 	Id.
Compass refers to each counterclaim as a count. 	But, I shall refer to each count as a
counterclaim. Counterclaim I asserts fraudulent misrepresentation against UMB and Thompson;
Counterclaim II asserts unfair competition against UMB and Thompson; Counterclaim III asserts
unfair competition against all plaintiffs; and Counterclaim IV asserts tortious interference with
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business relations, lodged against all plaintiffs. 	ECF 208 at 25-29, ¶ 1-48. 	Compass seeks
compensatory and exemplary damages. 	Id. 	at 28, ¶ 50.
to strike and 	counterclaims, pursuant
to Rule 12(f) and Rule 12(b)(6) of the Federal Rules of Civil Procedure. ECF 229. The motion is
supported by a memorandum (ECF 229-1) (collectively, the 	). 	Plaintiffs argue that
Compass 	was required to seek leave to assert these claims but did not do so, and the Court can
ECF 229-1 at 6.1 	Moreover, plaintiffs contend that
Compass lacks 	16(b) or under Rule 15(a)(2), for its long delay in
asserting these claims 	Id. 	at 7. 	To the contrary, plaintiffs maintain that the counterclaims are
and certainly had in hand
Id. at 6. 	And, according to plaintiffs,
filing of the counterclaims 	after the deadline for amending pleadings, after the
deadline for substantial completion of discovery, and shortly before expert reports were due
threatens to disrupt the case schedule and delay resolution . . . . 	Id. 	(boldface in original).
Therefore, they urge the Court to strike the counterclaims as procedurally deficient and unduly
prejudicial. ECF 229-1 at 6 	7.
As to counterclaims I and II, plaintiffs also contend that the claims are barred by
limitations, because they are based on events that occurred in 2019. 	Id. 	at 7,
18 	20; 	see 	Md. Code (2020 Repl. Vol., 2024 Supp.), § 5-101 of the Courts and Judicial
Proceedings Article. With respect to counterclaims III and IV, plaintiffs assert that they are barred
by the so called 	Noerr-Pennington 	doctrine. 	Id. 	at 7, 21 	23; 	see Pro. Real Est. Invs., Inc. v.
1 	Throughout this Memorandum Opinion, I cite to the electronic pagination. The electronic
pagination does not always correspond to page numbers imprinted on a particular submission.
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Columbia Pictures Indus., Inc., 508 U.S. 49 (1993); 	mbH,
335 F.3d 303 (4th Cir. 2003).
Compass opposes the Motion. ECF 232 	It is supported by eleven
exhibits. ECF 232-2 to ECF 232-13; ECF 234-1 to ECF 234-9.2 	Compass argues that it 	was not
required to seek leave to file the Counterclaims
Complaint. 	ECF 234-1 at 8. Alternatively, Compass seeks leave, claiming that it has good cause
under Rule 16(b) and Rule 15(a)(2). 	ECF 234-1 at 8. 	In particular, Compass contends that it
exercised due diligence in filing its counterclaims because they 	this July 	[of
2025] 	when it uncovered incriminating information 	through discovery in this case 	Id. 	(boldface
in original).
Moreover, Compass claims that plaintiffs put them in the position of filing belated
counterclaims. ECF 234-1 at 12. Compass explains that plaintiffs
beyond the
deadline. 	Id. 	Additionally, Compass claims that statute of limitations and the 	Noerr-Pennington
doctrine are affirmative defenses that should not be resolved at the pleading stage. 	Id.
Plaintiffs replied. ECF 239. They also submitted exhibits. ECF 237-1 to ECF 237-6; ECF
239. 	No hearing is necessary to resolve the Motion. 	See 	Local Rule 105.6. For the reasons that
follow, I shall grant the Motion.
2 	ECF 234-1 is the sealed version of ECF 232. I cite primarily to ECF 234-1.
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3
Terran filed suit on August 5, 2022,
1. 	The Complaint contained three counts: misappropriation of trade secrets, in violation of the
et seq. (Count I); misappropriation of trade
Repl. Vol., 2022 Supp.), § 11-1201 	et seq. 	of the Commercial Law Article (Count II); and breach
of contract (Count III). 	ECF 1, ¶¶ 31 	65. 	Compass moved to dismiss the Complaint, arguing,
inter alia, that this Court lacks personal jurisdiction over Compass. ECF 24.
On April 6, 2023, before the Court decided the first motion to dismiss, Terran moved to
In the First Motion, Terran sought to remove its
breach of contract claim (Count III) and to add factual allegations pertaining to personal
jurisdiction and in support of its trade secrets claims. 	Id. 	at 1. I granted the First Motion by Order
of April 7, 2023. ECF 33. The First Amended Complaint followed. 	See 	ECF 34.
Then, on May 19, 2023, Terran moved to file a Second Amended Complaint. 	ECF 45
s at issue in this
Id. 	at 2. 	In addition, Terran sought to add Count III, asserted jointly by Terran and
Professor Thompson, alleging unfair competition under Maryland law. 	Id. 	Counts IV through XI
of the proposed Second Amended Complaint were lodged solely by Professor Thompson, and
3 	The parties are familiar with the facts, which have been summarized by the Court in
several prior opinions and incorporated by reference here. 	See, 	e.g., ECF 79; ECF 112; ECF 128;
ECF 161; ECF 197. 	The facts pertinent to the Motion are drawn largely from the FAC and
FAC. ECF 199; ECF 208.
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included claims for detrimental reliance, unjust enrichment, fraud, and breach of contract. 	Id.
Compass did not oppose the motion. 	ECF 46. 	By Order of June 2, 2023, I granted the Second
Motion. ECF 47. The Second Amended Complaint is docketed at ECF 48.
On January 4, 2024, Terran and Thompson moved to file a Third Amended Complaint
, seeking to join UMB as a plaintiff, and to add factual allegations pertinent to the claims
The Third Motion was supported by numerous exhibits.
Compass opposed the proposed amendments as futile, untimely, and prejudicial. 	ECF 68. 	By
Memorandum Opinion (ECF 79) and Order (ECF 80) of February 6, 2024, I granted the Third
Motion. The TAC is docketed at ECF 81.
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4
On April 24, 2025, consistent with the deadline in the Scheduling Order, plaintiffs filed the
Fourth Motion. 	ECF 157. 	Pursuant to Rules 15(a) and 20(a)(2), plaintiffs sought to add
Malievskaia and Goldsmith as defendants, as noted. And, they submitted the proposed FAC. ECF
157-1. By Memorandum Opinion (ECF 197) and Order (ECF 198) of July 11, 2025, I granted the
Fourth Motion.
The FAC, docketed at ECF 199, contains the same eleven counts that were previously
asserted in the TAC (ECF 81). 	And, it appears to incorporate the same twenty-seven exhibits
appended to the TAC. 	See 	ECF 67-2 to ECF 67-28.5 	Count I, lodged by Terran and UMB against
all defendants, asserts misappropriation of trade secrets, in violation of the DTSA.6 	Count II,
4
5
6 	Based on the DTSA claim, subject matter jurisdiction is founded on 28 U.S.C. § 1331.
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brought by all plaintiffs against all defendants, asserts misappropriation of trade secrets, in
violation of the MUTSA. Count III, brought by all plaintiffs against all defendants, alleges unfair
competition. Counts IV through X are brought by UMB and Thompson against all defendants.
-In-
misrepresentation; Count VIII alleges negligent misrepresentation; Count IX asserts fraudulent
concealment; and Count X alleges constructive fraud. Count XI is brought solely by Thompson
and lodged only against Compass. It alleges breach of contract.
Critically, as to Compass, the FAC is substantively unchanged from the Third Amended
Complaint (ECF 81). But, for the reasons stated, the FAC added as defendants two individuals
who held executive positions at Compass when suit was filed, but who had since left the Company.
Of significance, no new claims were added to the suit. Rather, the New Defendants were added
to existing claims that had already been lodged against Compass. The counterclaims followed on
July 25, 2025. ECF 208.
Malievskaia and Goldsmith are citizens of the United Kingdom. ECF 199, ¶¶ 13, 14. They
co-founded Compass in 2016 and held various roles in the company. 	See id. 	For example,
Id. 	¶ 14. 	Dr.
jurisdiction. 	See 	28 U.S.C. § 1367. 	In any event, the Court also has subject matter jurisdiction
pursuant to 28 U.S.C. § 1332(a), based on diversity of citizenship. ECF 199, ¶ 18.
Case 1:22-cv-01956-ELH Document 326 Filed 12/19/25 Page 8 of 61

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Officer from January 2020 through June 2023. 	Id. 	¶ 13.7
O
ECF 181 at 6 n.5. Moreover, both
Id. 	at 12; 	see 	ECF 157 at 5.
According to the FAC, in November 2016, while Dr. Thompson worked at UMB, he
-HT2A
antagonist (including ketanserin) as a potential rapid, non-
ECF 199, ¶ 1.8 	-HT2A antagonists like
Id. 	However,
independent of significant 5-HT2A receptor activation that causes hallucinations, and discovered
that, through the sequential administration of ketanserin (or other 5-HT2A antagonists) followed
by psilocybin, a patient could receive the antidepressant benefits of psilocybin, without being
Id.
Professor Thompson engaged in extensive research . . . related to the sequential administration of
ketanserin (or other 5-HT2A antagonists) followed by psilocybin, in order to produce the optimal
non-hallucinatory and anti- 	Id. 	¶ 27
7 	-3), filed as an exhibit to
motion to dismiss the TAC
Officer 	of 	Compass 	Pathways 	plc, 	the 	parent 	company 	of 	Compass 	Pathfinder 	Limited
-3, ¶ 2.
8 	Dr. Thompson is now a Professor of Psychiatry at the University of Colorado Anschutz
School of Medicine. ECF 199, ¶ 11.
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Id.
The FAC asserts, 	id. 	¶ 28
FAC, I shall refer to the information
outlined by plaintiffs in ECF 199, ¶¶ 27 	29 	9
Psilocybin Trade Secrets. 	Id. 	¶ 28
Id. 	(citing ECF 67-15
at 4 	5). UMB, as owner of the Psilocybin Trade Secrets, entered into a Master License Agreement
199, ¶ 54
s, 	id. 	bring a groundbreaking rapid,
non- 	Id.
the right to institute any action for misappropriation of any Psilocybin Trade Secret that has existed
Id. 	¶ 55.
10
9
consistency; the usage is not a ruling that the information does, in fact, constitute a trade secret.
10 	Plaintiffs cited Exhibit 15 to the Third Motion (ECF 67-16) to support their assertion
8
on August 13, 2019. 	ECF 199, ¶ 30 (boldface added). 	However, that patent application is
9 	other
occasions. 	See 	ECF 197 at 8 n.7; ECF 161 at 6, n.7; ECF 128 at 6 n.4; ECF 79 at 4 n.3. Because
.
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Thompson and UMB held the Psilocybin
-
Id. 	¶ 29.
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11
ECF 24-
id.
to . . . travel to Maryland to defend itself against claims arising from an NDA it did not sign . . .
ECF 51- 	: 	The NDA was only signed by
-
icted above, the signature page of the NDA, which
features the typed name of George Goldsmith, is blank as to his signature. 	See 	ECF 67-19 at 4.
And,
11 	Compass also sent Gould a NDA. 	See 	ECF 67-20 at 2. But, the FAC does not specify
whether Gould ever executed it.
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12
Trade Secrets. ECF 199, ¶ 36.
13
12 	The Court was not provided with a copy of the proposal.
13 	The Court has not been provided with any drafts of a collaboration agreement.
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Later, plaintiffs discovered that on August 29, 2019, Compass filed U.S. Provisional Patent
199, ¶ 43.
- 	- 	The application
-HT2A antagonist (expressly including
ECF 199,
¶ 43.
points, frequency and dosing of such therapy . 	Id. 	¶ 47; 	see id. 	¶ 48 (citing ECF 67-7 at 265).
Plaintiffs allege, ECF 199, ¶ 48
made any public disclosure of these aspects and details of his Psilocybin Trade Secrets, nor did he
Plaintiffs posit that
securing patent rights over the Psilocybin Trade Secrets . . . 	Id.
According to plaintiffs, Compass and the New Defendants
Application from Professor Thompson and disclosed them in their 	Id. 	¶
43. In this regard, plaintiffs observe
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the defendants 	they had not
been researching the combination of psilocybin with a 5-HT2A antagonist, and had no knowledge
Id. 	¶ 42. 	Moreover, plaintiffs maintain that
Id. 	¶ 46.
Since 2019, Compass has filed at least four additional United States patent applications,
-HT2A antagonist
Id. 	¶ 50 	, at the direction
of Dr. Malievskaia and Goldsmith,
Id.
sequential administration of a 5-HT2A 	Id. 	(citing ECF 67-25
at 4). However, on August 25, 2022, before the Patent Office took any action with respect to the
199, ¶ 50 (citing ECF 67-26 at 4). 	According to plaintiffs, Compass cancelled these claims
Defendants
misconduct and the fact that no one at Compass actually invented the claimed subject matter . . . .
ECF 199, ¶ 50.
, at the direction of Dr. Malievskaia and Goldsmith,
filed two additional non-provisional applications . . . U.S. Patent Application Nos. 17/604,606 and
17/604,619, which included, in their specifications, aspects and details of the Psilocybin Trade
Id. 	¶ 51 	, at the direction of Dr. Malievskaia and
Goldsmith, filed U.S. Patent Application No. 17/540,962, which likewise included aspects and
details of the Psilocybin Trade Secre 	Id.
Id. 	(citing ECF 67-9 at 132 	33, 149
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ECF 199, ¶ 51.
Id. 	Plaintiffs allege,
id.
who were involved in the communications with Professor Thompson and Professor Gould starting
ngs with Professor
Thompson and Professor Gould, and had ac 	Notably, this
includes Dr. Malievskaia and Goldsmith. 	Id.; 	see 	also, e.g., ECF 67-9 (U.S. Patent No.
11,564,935), at 1 (listing Dr. Malievskaia and Goldsmith, among other people, as inventors).
A defendant may test the legal sufficiency of a complaint by way of a motion to dismiss
under Rule 12(b)(6). 	Doriety v. Sletten, 109 F.4th 670, 679 (4th Cir. 2024); 	Nadendla v. WakeMed,
24 F.4th 299, 304 	05 (4th Cir. 2022); 	Robertson v. Anderson Mill Elementary Sch., 989 F.3d 282,
290 (4th Cir. 2021); 	Fessler v. 	Bus. Machs. Corp., 959 F.3d 146, 152 (4th Cir. 2020); 	Paradise
Wire & Cable Defined Benefit Pension Plan v. Weil, 918 F.3d 312, 317 (4th Cir. 2019); 	In re
Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); 	Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159,
165 	66 (4th Cir. 2016); 	McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010), 	sub nom.
McBurney v. Young, 569 U.S. 221 (2013). A Rule 12(b)(6) motion constitutes an assertion by a
defendant that, even if the facts alleged by a plaintiff are true, the complaint fails as a matter of
12(b)(6
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Retfalvi v. United States,
930 F.3d 600, 605 (4th Cir. 2019) (alteration in 	Retfalvi) (quoting 	E.I. du Pont de Nemours & Co.
v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011)); 	see 	Hebb v. City of Asheville, N. Carolina,
145 F.4th 421, 432 (4th Cir. 2025).
Fed. R. Civ. P. 12(f) governs motions to strike. It
from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous
See, e.g., 	Haley Paint Co. v. E.I. du Pont de Nemours & Co., 279 F.R.D. 331, 335 (D.
. . . in order to minimize delay, prejudice and confusion by narrowing the issues for discovery and
Id. at 336.
Courts have used Rule 12(f) to strike and dismiss untimely claims added by a party without
leave of court. 	See, 	e.g., Patterson v. Louisiana State Bd. of Elementary & Secondary Educ., No.
CV 21-30-JWD-RLB, 2023 WL 5251843, at *4 (M.D. La. Aug. 15, 2023) (granting Rule 12(f)
motion to strike newly added claims because plaintiff could not show good cause for untimely
assertion) 	Ten Bridges, LLC v. Midas Mulligan, LLC, 522 F. Supp. 3d 856, 867 (W.D. Wash.
2021) (granting motion to strike untimely claims filed without leave of court); 	Concordia Pharms.
Inc. SARL., No. 618CV01658HMHJDA, 2019 WL 2502212, at *5 (D.S.C. May 17, 2019)
(granting Rule 12(f) motion as to untimely claims added without leave of court), 	report and
recommendation adopted sub nom., 2019 WL 2502189 (D.S.C. June 17, 2019); 	see Hendrix v.
Coffey, 	305 Fed. Appx. 495, 497 (10th Cir. 2008) (granting motion to strike reply brief as
untimely); 	Doe A.F. v. Lyft, Inc., 	No. CV 23-3990-KSM, 2024 WL 4479912, at *1 (E.D. Pa. Oct.
10, 2024) 	Plaintiff did not have Lyft's consent or leave of court to add Count II, the
Court will strike it under Federal Rule of Civil Procedure 12(f). 	Boyack v. Salon Mgmt. Corp.,
Case 1:22-cv-01956-ELH Document 326 Filed 12/19/25 Page 17 of 61

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No. SACV1801233AGDFMX, 2019 WL 1744855, at *3 (C.D. Cal. Feb. 11, 2019) ) 	The Court
instead opts to strike the newly added claims for relief under Rule 12(f). 	, 	aff'd sub nom., 	812 F.
App'x 428 (9th Cir. 2020); 	Baca v. Patriot Nat'l, Inc., No. 17-CV-03508-SK, 2018 WL 10435168,
at *2 (N.D. Cal. Feb. 12, 2018) (granting Rule 12(f) motion to strike claims that were added beyond
Romero v. Barnett, 	DKC-09-2371, 2011 WL 1938147, at *1
(D. 	Md. 	May 	20, 	2011) 	(recognizing 	that 	some 	courts 	have 	stricken untimely answers
under Rule 12(f).).
To be sure,
portion of a pleading is a drastic remedy and because it is often sought by the movant simply as a
Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001)
(internal quotation marks omitted); 	see also 	Renaissance Greeting Cards, Inc. v. Dollar Tree
Stores
Piontek
v. Serv. Ctrs. Corp., PJM 10 	1202, 2010 WL 4449419, at *8 	9 (D. Md. Nov. 5, 2010) (citation
omitted).
Ordinarily, a
U.S. ex rel. Ackley v. Int'l
Bus. Machines Corp., 110 F. Supp. 2d 395, 406 (D. Md. 2000) (quoting 	Steuart Inv. Co. v. Bauer
Dredging Constr. Co., 323 F. Supp. 907, 909 (D. Md. 1971)); 	accord Williams v. Kettler Mgmt.
Inc., CCB 	12 	1226, 2014 WL 509474 (D. Md. Feb. 5, 2014); 	E.E.O.C. v. Spoa, LLC, CCB 	13
1615, 2014 WL 47337 (D. Md. Jan. 3, 2014).
is relaxed in the context of scandalous allegations, 	i.e., those that improperly cast a derogatory
Asher & Simons, P.A. v. J2 Global Canada, Inc., 965 F. Supp. 2d 701, 702
Case 1:22-cv-01956-ELH Document 326 Filed 12/19/25 Page 18 of 61

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(D. Md. 2013) (citation omitted), 	partial reconsideration on other grounds, 977 F. Supp. 2d 544
(D. Md. 2013).
A
NCUA v. First Union Capital
Mtks. Corp., 189 F.R.D. 158, 163 (D. Md. 1999); 	see Federal Ins. Co. v. Edenbaum, JKS 	12 	410,
2012 WL 2803739, at *2 (D. Md. July 9, 2012).
granted in the absence of a showing of prejudice to the moving party.[] 	Wright and Miller, Federal
Practice and Procedure: Civil 3d § 1381 a
and, in some cases, may be determinative, where a defense is presented beyond the normal time
limits of the Rules, especially at a late stage in the litigation . . . 	GEOMC Co., Ltd. v. Calmore
Therapeutics Inc., 918 F.3d 92, 99 (2nd Cir. 2019). The Second Circuit has cautioned that, when
challenge should be made, 	inter alia, under Rule 12(b)(6), but not Rule 12(f). 	Id. 	at 101.
III. The Filing of the Counterclaims
Plaintiffs argue that Compass was required to seek leave of court to file its counterclaims
in July 2025. ECF 229-1 at 12.
Id.
Compass maintains that the counterclaims were filed by right. 	ECF 234-1 at 8, 12. 	In the
alternative, Compass asks the Court 	retroactively grant leave for Compass to file its
Counterclaims 	Id. at 16.
The . . . question is whether a new counterclaim may respond as broadly as one included
in an answer to an original complaint or whether it must respond only to the new allegations of an
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amended complaint. This is an issue that remains unresolved . . . 	GEOMC Co., Ltd., 918 F.3d
at 100. The Second Circuit has stated, 	id. 	depends on how far
court added, 	id.
of the litigation . . . a new counterclaim that raises issues beyond the scope of the new claims made
in 	the 	most 	recent 	amended 	complaint 	will 	usually 	cause 	escalating 	prejudice 	to 	the
counterdefendant and undue expansion of litigation
The Second Circuit has
Id.
The Second Circuit outlined the principal approaches to the analysis, as follows, 	id. 	at 100,
n.12:
Four approaches to the issue have been identified for new counterclaims
asserted in an amended answer that responds to an amended complaint. A so-called
ilored specifically to address the amendments in the
id. 	A 	so- 	id. 	suggests 	that 	new
id. 	A so-
id.
id.,
id. 	Finally, a so- 	id., suggests that
id.; 	see Bern Unlimited, Inc.
v. Burton Corp., 25 F.Supp.3d 170, 178-79 (D. Mass. 2014).
According to plaintiffs, 	-sense 	moderate
approach 	-1 at 12. Plaintiffs emphasize that the FAC did not change the theory or
the scope of the case. 	Id. 	at 13. Yet, they argue that the c
Id. 	In their view,
. 	Id.
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No appellate court 	has squarely addressed whether counterclaims filed
ECF 234-1 at 11 (citing 	Elite Ent. Inc. v. Khela Bros Ent., 227 F.R.D. 444, 446 (E.D. Va. 2005))
(emphasis in ECF 234-1). Compass insists that
advocates for the permissive approach adopted
by several courts. ECF 234-1 at 12. 	It points out that
, as such, opened the door for the counterclaims. 	Id.
Further, Compass maintains that, even under the 	moderate approach, 	Compass was not
required to seek leave. ECF 234-1
requirement . . . 	ontend
asserted 	ten 	counts against 	each 	. . . Compass asserted only four Counterclaims and did not seek
to add 	any 	Id. (boldface in original). 	Additionally, Compass contends that
because the 	onal
Id.
The moderate approach appears to be the majority approach. 	See, e.g., 	Poly-Med, Inc. v.
Novus Sci. Pte Ltd., No. 8:15-CV-01964-JMC, 2017 WL 2874715, at *2 (D.S.C. July 6, 2017)
( 	Because in the Fourth Circuit, courts have routinely adopted and applied the moderate approach
and the moderate approach has found favor with respected commentators, this court will adopt the
moderate approach. 	Activevideo Networks, Inc. v. Verizon Commc'ns, Inc., No.
2:10CV248, 2011 WL 13113382, at *3 (E.D. Va. Mar. 1, 2011) 	Courts within the Fourth Circuit
); 	see also 	Burton v. Ghosh, 961 F.3d
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22
960, 968 (7th Cir. 2020)
defendants to assert counterclaims or defenses as of right, claims that would otherwise be barred
or precluded could be revived without cause. This would deprive the Court of its ability to
(citing 	E.E.O.C. v. Morgan Stanley & Co., Inc., 211 F.R.D.
225, 227 (S.D.N.Y. 2002); 	Krinsk v. SunTrust Banks, Inc., 654 F.3d 1194, 1202 (11th Cir. 2011)
[T]he filing of an amended complaint does not automatically revive all defenses or objections
that the defendant may have waived in response to the initial complaint. 	); 	KDF Forestry, Inc. v.
Wells, No. 2:23-CV-04072-BCW, 2024 WL 5446325, at *3 (W.D. Mo. Jan. 24, 2024 	[T]he
Eighth Circuit has indirectly adopted 	.) (alteration added) (citing 	Tralon
Corp. v. Cedarapids, Inc., 966 F. Supp. 812, 832 (N.D. Iowa 1997), 	aff'd on other grounds, 205
F.3d 	1347 	(8th 	Cir. 	2000)); 	Power 	Probe 	Grp. 	Inc. 	v. 	Innova 	Elecs. 	Corp., 	No.
221CV00332GMNEJY, 2023 WL 7704414, at *1 (D. Nev. Nov. 14, 2023) 	[T]he 	moderate
approach 	is the most commonly adopted approach by district courts in the Ninth Circuit
(alteration added) (internal citation omitted); 	Danieli Corp. v. SMS Grp., Inc., No. 2:21-CV-1716,
2022 WL 5247424, at *3 (W.D. Pa. Aug. 18, 2022) 	[T]he moderate approach appears to be the
one employed by a majority of the district courts tackling this issue and is favored by commentators
as well 	(alteration added); 	Raymond James & Assocs., Inc. v. 50 N. Front St. TN, LLC, No. 18-
CV-2104-JTF-TMP, 2020 WL 7332846 (W.D. Tenn. June 23, 2020) ( 	Courts and commentators
are in agreement that the majority rule is the 	moderate 	approach. 	), 	report and recommendation
adopted, No. 218CV02104JTFTMP, 2020 WL 6694299 (W.D. Tenn. Nov. 13, 2020).
As indicated, under 	may file an 	amended response,
without leave of court, 	only when the amended complaint changes the theory or scope of the case,
and then, the breadth of the changes in the amended response must reflect the breadth of the
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23
changes in the amended complaint. 	Elite Ent., Inc., 227 F.R.D. at 446. Compass claims that the
addition of New Defendants in the FAC expanded the scope of the case and thus it had the right to
lodge counterclaims. 	ECF 234-1 at 13. But, Compass ignores that the content of the FAC was
unchanged as to Compass. And, although the FAC added Malievsakaia and Goldsmith as parties,
their conduct has been at issue since the inception of the litigation, and the allegations as to their
conduct were largely unchanged.14
I made clear in my ruling permitting the filing of the FAC (ECF 197) that I allowed the
filing of the FAC precisely because it did not alter the scope of the litigation. In my Memorandum
Opinion of July 11, 2025 (ECF 197), I pointed to an important change in circumstances: 	the
departure of the New Defendants from Compass. As mentioned, the New Defendants were alleged
co-founders of Compass and, when plaintiffs filed earlier versions of the suit, they held key roles
with Compass. Moreover, the earlier versions of the suit were replete with allegations concerning
the conduct of both Malievskaia and Goldsmith. Given the departure of the New Defendants from
Compass, however, it was understandable that plaintiffs wanted to add them as parties.15
In granting leave to file the FAC, I considered that the FAC did not alter the theory or scope
of the case. Significantly, the FAC did not introduce any new claims against Compass.
is undisputed that the Proposed FAC does not materially alter the suit 	at 35. I also
said, 	id. 	at 2 (alterations added): 	he factual allegations in the Proposed FAC (ECF
157-1) are essentially the same as those in the [Third Amended Complaint]. 	And, the claims
14 	The New Defendants likely would have had the right to file counterclaims. 	But, they
did not do so.
15 	For example, if Malievskaia and Goldsmith are no longer employed by or associated
with Compass, it is possible that Compass would attempt to blame any misconduct on them and
disavow responsibility for any alleged unlawful conduct by them. That was not a likely concern
while Malievskaia and Goldsmith were part of Compass.
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24
Further, I observed that plaintiffs did not add new information as to the New Defendants. To the
contrary, I pointed out that Compass had 	known for years that plaintiffs accused Dr. Malievskaia
and Goldsmith of wrongdoing 	Id. 	at 35.
Critically, the claims in the FAC were unchanged and were 	based on the same conduct
already alleged. 	Id. 	at 30. Of import, I also observed that 	not require Compass
to conduct any discovery that it otherwise would not conduct 	Id. at 36.
between the FAC and the filing
of counterclaims by Compass is a bridge too far. 	See 	ECF 234-1 at 14. The FAC merely added two
New Defendants whose conduct was always in issue, but whose status with Compass had changed
significantly. Of import, Compass does not complain that it is disadvantaged by the addition of
the two New Defendants. 	Id. 	at 12. 	If Compass wanted to lodge counterclaims, it had ample
opportunity to do so well before the filing deadline.
When, as here, the substance of an amended complaint is largely unchanged, courts
a counterclaim requires leave
of court. 	See, e.g., Grain Processing Corp. v. Virgin Scent, Inc., No. 321CV00019RGESBJ, 2022
WL 14624960, at *5 (S.D. Iowa June 24, 2022) (concluding that defendant 	was required to seek
leave of the Court to assert its counterclaims [because t]he amended complaint did not add new
facts as to or claims against [defendant]. 	) (alterations added); 	Ten Bridges, 	522 F. Supp. 3d at 867
(stat 	made only minor amendments to its abuse of process
claim . . . [defendant] was not entitled to assert its . . . counterclaim as of right 	(alterations
added); 	Mgmt. Registry, Inc. v. A.W. Companies, Inc., No. 17-5009 (JRT/KMM), 2020 WL
5813291, at *5 (D. Minn. Sept. 30, 2020) (finding that the amended complaint 	did not change the
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25
scope or theory of MRI's case . . . and did not create the opportunity for Defendants to introduce
these counterclaims as of right. 	Concordia Pharms. Inc. SARL, No. 618CV01658HMHJDA,
2019 WL 2502212, at *5 (D.S.C. May 17, 2019) (following minor amendments to an amended
complaint, defendants were required to obtain leave of court before including 	three counterclaims
that were not alleged in the original Answer and that apparently bear no relation to the changes in
the Amended Complaint.
Under the circumstances, I conclude that Compass required leave of court to file the
counterclaims. 	In its Opposition, Compass asks, in the alternative, for leave to file the
counterclaims. ECF 234-1 at 15. This request implicates Rules 15 and 16 of the Federal Rules of
Civil Procedure, to which I turn.
IV. Rule 15(a) and Rule 16
A. Rule 15(a)
Fed. R. Civ. P. 15(a)(1)
course no later than . . . 21 days after serving it, or . . . if the pleading is one to which a responsive
pleading is required, 21 days after service of a responsive pleading or 21 days after service of a
Fed. R. Civ. P. 15(a)(2)
other cas
Under Rule
of 	Galustian v. Peter, 591 F.3d 724, 729 (4th Cir.
2010) (citing 	Coral v. Gonse, 330 F.2d 997, 998 (4th Cir. 1964)); 	see also United States ex rel.
Nicholson v. MedCom Carolinas, Inc., 42 F.4th 185, 197 (4th Cir. 2022) 	MedCom 	Johnson v.
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26
Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986) (quoting 	Foman v. Davis, 371 U.S. 178,
182 (1962)).
Laber v. Harvey, 438 F.3d 404, 426 (4th Cir.
2006); 	see also MedCom
only when the amendment would be prejudicial to the opposing party, there has been bad faith on
Oroweat Foods Co., 785 F.2d
at 509 (citing 	Foman, 371 U.S. at 182); 	see also Davison v. Randall, 912 F.3d 666, 690 (4th Cir.
2019); 	Adbul-Mumit v. Alexandria Hyundai, LLC, 896 F.3d 278, 293 (4th Cir. 2018); 	Scott v.
Family Dollar Stores, 733 F.3d 105, 121 (4th Cir. 2013) (Wilkinson, J., dissenting); 	Mayfield v.
, 674 F.3d 369, 379 (4th Cir. 2012); 	Equal Rights Ctr.
v. Niles Bolton Assocs., 602 F.3d 597, 603 (4th Cir. 2010); 	Medigen of Ky., Inc. v. Pub. Serv.
, 985 F.2d 164, 168 (4th Cir. 1993).
Ultimately, the decision whether to grant leave to amend falls within the sound discretion
of the district court. 	Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 553 (2010)
terms, Rule 15(a) gives 	discretion 	to 	the 	district 	court 	in 	deciding 	whether 	to 	grant
a motion to amend 	see also Medigen of Ky., Inc., 985 F.2d
at 167
MedCom, 42 F.4th at 198 (citing 	Bluestein v. Cent. Wis. Anesthesiology, S.C., 769 F.3d
MedCom, 42 F.4th at 197 (quoting Henry J. Friendly, 	Indiscretion About
Discretion, 31 Emory L. J. 747, 754 (1982)) (additional citation omitted).
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27
As indicated, leave to amend should be denied if the amendment would be prejudicial,
futile, or made in bad faith. These issues are discussed below.
, 637 F.3d 462, 471 (4th Cir.
2011) (quoting 	United States ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 376 (4th
as Fed. R. Civ. P. 8, Fed. R. Civ. P. 12(b)(2), and Fed. R. Civ. P. 12(b)(6). 	See Davison, 912 F.3d
at 690 (quoting 	Katyle, 637 F.3d at 471).
In re Triangle Cap. Corp. Sec. Litig., 988 F.3d
743, 750 (4th Cir. 2021) (quoting 	Oroweat Foods Co., 785 F.2d at 510). More recently, the Fourth
fails to withstand Rule 12(b)(6) 	In re Triangle Cap. Corp. Sec. Litig., 988 F.3d at
750; 	see also Daulatzai v. Maryland, 606 F. Supp. 3d 252, 262 (D. Md. 2022) (recognizing that
amend if the proposed amendment would not withstand a Rule 12(b)(6) challenge), 	, 97 F.4th
166 (4th Cir. 2024).
Those
RDB-23-405, 2025 WL
2494325, at *9 (D. Md. Aug. 29, 2025) (quoting 	Bioiberica Nebraska, Inc. v. Nutramax Mfg., Inc.,
SAG-18-03133, 2019 WL 5102674, at *3 (D. Md. Oct. 10, 2019)). 	The court in 	Bioberica
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28
Nebraska, Inc.
clearly insufficient or frivolous on
its face 	. . . 	-
in original) (cleaned up).
Whether a complaint states a claim for relief, in the context of Rule 12(b)(6), is assessed
by reference to the pleading requirements of Fed. R. Civ. P. 8(a)(2). 	See Migdal v. Rowe Price-
, 248 F.3d 321, 325 	26 (4th Cir. 2001); 	see also Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 513 	14 (2002). 	Fed. R. Civ. P. 8(a)(2) provides that a complaint must contain a
The purpose
of the rule is to provide the d
entitlement to relief. 	Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain facts
Id. 	at 570; 	see Ashcroft v. Iqbal,
Twombly 	expounded the pleading
Seabrook v. Driscoll, 148 F.4th 264, 269 (4th Cir. 2025);
Sysco Mach. Corp. v. DCS USA Corp., 143 F.4th 222, 228 (4th Cir. 2025); 	Lokhova v. Halper,
995 F.3d 134, 141 (4th Cir. 2021); 	Fauconier v. Clarke, 966 F.3d 265, 276 (4th Cir. 2020);
Paradise Wire & Cable Defined Benefit Pension Plan v. Weil, 918 F.3d 312, (4th Cir. 2019);
Willner v. Dimon, 849 F.3d 93, 112 (4th Cir. 2017). 	A plausible claim is more than merely
conceivable or speculative. 	Holloway v. Maryland, 32 F.4th 293, 299 (4th Cir. 2022).
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
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29
Iqbal, 556 U.S. at
678.
But, a
Twombly, 550 U.S. at 555.
Johnson v.
City of Shelby, Miss., 574 U.S. 10, 11 (2014) (per curiam).
Francis v. Giacomelli, 588 F.3d
186, 193 (4th Cir. 2009) (citation omitted).
In other words, the rule demands more than bald accusations or mere speculation.
Twombly, 550 U.S. at 555; 	, 716 F.3d 342, 350 (4th Cir.
2013).
Twombly, 550 U.S. at 555.
unadorned, the-defendant-unlawfully-harmed-
relief. 	Iqbal, 556 U.S. at 678. 	Instead, to satisfy the minimal requirements of Rule 8(a)(2), the
, and . . . recovery is very remote
Twombly, 550 U.S. at 556 (internal quotation marks omitted).
As noted, leave to amend should be denied if the amendment would be prejudicial to the
opponent. 	Oroweat Foods Co., 785 F.2d at 509. Under Rule
party opposing the amendment would be hindered in the preparation of its case, or would have
61A 	AM. 	JUR. 2d, Pleading
Adbul-Mumit, 896 F.3d at 293 (quoting 	Laber, 438 F.3d at
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30
427); 	see also Doe v. Mercy High Sch., Inc., JJR-23-01184, 2024 WL 4443076, at *3 (D. Md. Oct.
8, 2024)
Adbul-Mumit, 896 F.3d at
Id. 	(citation omitted; alterations
in 	Adbul-Mumit); 	see also Ramnarine v. Rainbow Child Dev. Ctr., Inc., RWT-17-2261, 2018 WL
2762564, at *2 (D. Md. June 8, 2018)
A court may find undue prejudice sufficient to justify denying leave to amend if a new
claim or defense would force the non-
a 	timely 	action 	in 	another
61A 	AM. 	JUR. 2d, Pleading § 664; 	see also Sharkey IRO/IRA v. Franklin Res., 263
F.R.D. 298, 301 (D. Md. 2009) 	-moving party
when the motion would shift the theory of the case, thereby rendering the non-
discovery a misdirected use of resources and compelling the non-moving party to engage in costly
Laber
legal theory that would require the
gathering and analysis of facts not already considered by the [defendant, and] is offered shortly
Laber).
However, 	[a]n amendment is not prejudicial . . . if it merely adds an additional theory of
recovery 	to 	the 	facts 	already 	pled 	and 	is 	offered 	before 	any 	discovery 	has
Id. 	(citing 	Davis v. Piper Aircraft Co., 615 F.2d 606, 613 (4th Cir. 1980) (alteration
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31
added), 	cert. denied, 448 U.S. 911 (1980)); 	see also Ramnarine, 2018 WL 2762564, at *2.
, JAS-05-0033,
2006 WL 1289545, at *3 (M.D. Pa. May 9, 2006); 	see also Block v. First Blood Assocs., 988 F.2d
344, 351 (2d Cir. 1993) (concluding that the time, effort, and money expended by the plaintiffs in
litigating the case did not amount to substantial prejudice).
whether to grant leave to amend under Rule 	Krupski, 560 U.S. at 553 (quoting 	Foman,
371 U.S. at 182). But, 	Edwards
v. City of Goldsboro, 178 F.3d 231, 242 (4th Cir. 1999); 	see also MedCom, 42 F.4th at 197
alone is not enough to deny leave to amend, though it is often evidence that goes to prove bad faith
Deasy v. Hill, 833 F.2d 38, 41 (4th Cir. 1987)
Davis, 615 F.2d at 613
alone however, without any specifically resulting prejudice, or any obvious design by dilatoriness
accompanied by prejudice, bad faith 	Edwards, 178 F.3d at 242; 	see also Mayfield,
674 F.3d at 379 	only be denied if one of three facts is
Franks v. Ross,
313 F.3d 184, 193 (4th Cir. 2002) 	only when 	the
amendment would be prejudicial to the opposing party, there has been bad faith on the part of the
Franks). And,
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32
, 350
F. Supp. 3d 340, 346 (D. Md. 2018) (quoting 	Davis, 615 F.2d at 613), 	Oliver v.
Bartholomew 	see V.E. v. Univ. of Maryland
Baltimore 	Cty., 	Maryland, 	JRR-22-02338, 	2023 	WL 	5153650, 	at 	*2 	(D. 	Md. 	Aug. 	10,
2023), 	, 2024 WL 4563857 (4th Cir. Oct. 24, 2024) (per curiam).
like bad faith; in truth, it is a difficult term to define without retreating to circular reasoning or just
MedCom
Id. 	(citation omitted) (alteration in
original). 	The Court added, 	id.
reasons. 	It may be outright lying, deceiving, playing unjustifiable hardball, slacking off,
intentionally causing confusion, or stubbornly refusing to follow rules 	you can imagine cases
where a party just wants to cause chaos 	or it might be something as mundane as noticing
s
extended period, it is not unreasonable for a district court to presume bad faith, at least where no
Id. 	at 199.
B. Rule 16
Rule 1616 	governs scheduling, case management, and amendment of pleadings filed beyond
thronged dockets, effective case management has become an essential tool for handling civil
Tower Ventures, Inc. v. City of Westfield, 296 F.3d 43, 45 (1st Cir. 2002).
16 	Rule 16 was amended, effective December 1, 2025. 	See 	Fed. R. Civ. P. 16(b)(3)(B)(iv).
But, the amendment does not affect the analysis.
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33
Scheduling orders serve a vital role in helping courts manage their civil caseloads.
Gestetner Corp. v. Case Equip. Co., 108 F.R.D. 138, 141 (D. Md. 1985); 	see also Naughton v.
Bankier, 114 Md. App. 641, 653, 691 A.2d 712, 718 (1997) (recognizing that a scheduling order
Miller v. Transcend Servs., Inc., LPA-10-362, 2013 WL 1632335, at *4 (M.D.N.C. Apr. 16, 2013)
(quoting 	Marcum v. Zimmer
Potomac
Elec. Power Co. v. Elec. Motor Supply, Inc., 190 F.R.D. 372, 375-76 (D. Md. 1999) (quoting
Gestetner Corp., 108 F.R.D. at 141).
Wonasue v.
, 295 F.R.D. 104, 106 (D. Md. 2013); 	see Faulconer v. Centra Health,
Inc.
Under Rule 16(b)(4), a movant must demonstrate good cause to satisfy the requirement for
a modification of a scheduling order. 	See Faulconer 	Nourison Rug Corp. v.
Parvizian, 535 F.3d 295, 298 (4th Cir. 2008); 	Wonasue, 295 F.R.D. at 106 	07; 	see also Cook v.
Howard
to the entry of a scheduling order, at which point, under Rule 16(b)(4), a party must first
e also satisfying the Rule
United States v. Hartford Accident & Indem. Co., JKB-14-
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34
Odyssey Travel Ctr., Inc. v. RO Cruises, Inc., 262 F. Supp. 2d 618,
passed, a moving party first must satisfy the good cause standard of Rule 16(b); if the moving
party satisfies Rule 16(b), the movant then must pass the tests for amendment under [Rule]
. . . deadlines [in a scheduling order] because scheduling order deadlines are established relatively
, 357 F.3d 152, 154 (1st Cir.
2004) (citation omitted). In 	Nourison, 535 F.3d at 298, the Fourth Circuit explained:
There is tension within the Federal Rules of Civil Procedure between Rule 15(a)
be prejudicial, there has been bad faith, or the amendment would be futile. 	HCMF
Corp. v. Allen, 238 F.3d 273, 276 	77 (4th Cir. 2001). On the other hand, Rule 16(b)
Nourison
Faulconer
Id.; 	see also id. 	at
152 n.1 (collecting cases); 	accord Rassoull v. Maximus, Inc., 209 F.R.D. 372, 374 (D. Md. 2002)
cause standard, then 	Varner v. South
Carolina Farm Bureau Ins. Co., TLW-18-2098, 2020 WL 12834378, at *1 (D.S.C. Oct. 2, 2020).
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35
In evaluating diligence, courts primarily focus on
Elat v. Ngoubene, 993 F. Supp. 2d 497, 520 (D. Md.
2014) (quoting 	CBX Techs., Inc. v. GCC Techs., LLC, JKB-10-2112, 2012 WL 3038639, at *4 (D.
Md. July 24, 2012) (internal quotation marks omitted)) (alteration in 	Elat
Wonasue, 295
F.R.D. at 107 (quoting 	CBX Techs., Inc.
party knew of the underlying conduct giving rise to a claim but simply failed to raise it in an initial
e
Faulconer
some of the evidence needed for a [party] to prove his or her claim did not come to light until after
Wonasue, 295 F.R.D. at 107 (quoting 	Tawwaab v. Va. Linen Serv., Inc., 729 F. Supp. 2d 757, 768
69 (D. Md. 2010)) (alterations added).
To determine whether the moving party has met his burden to show good cause, a court
and whether the delay will prejudice the non- 	Elat, 993 F. Supp. 2d at 520.
Faulconer
Kmak v. Am. Century Cos., Inc., 873 F.3d 1030, 1034 (8th Cir. 2017)); 	see also Rassoull, 209
(alteration added); 	Marcum
(citation omitted) (emphasis removed).
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36
Notably, the Court need not address Rule 15 unless Rule 16 is satisfied. But, if the moving
Pittsburgh, PA, DKC-13-1822, 2016 WL 3668028, at *2 (D. Md. July 11, 2016); 	see Cook, 484
15; 	Wonasue, 295 F.R.D. at 106 	07.
C. Discussion
i.e.
-1 at 18; 	see 	ECF 208 at 27, 28 ¶¶ 40, 46.
Moreover,
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37
With respect to counterclaims I and II, Compass argues that emails obtained in discovery
support the basis for its belated filing. It states, ECF 234-1 at 18 (emphasis in original)
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38
As to counterclaims III and IV, Compass maintains that Professor Thompson did not
possess
optimal
for therapy using the sequential administration of a 5- 	Id. 	at
22, 	¶ 22 (boldface in original). This is because the research had not progressed. 	Id. 	at 22-24, 27,
28, ¶¶ 18-28, 39, 48. 	Compass asserts, 	id. 	at 28, ¶
any human studies on the combination . . . 	rodent studies would not even directly translate to
human dosing, timing and frequency; and therefore . . . Professor Thompson did not know the
still 	not identified the purportedly
ECF 234- 	nearly
four months before filing this lawsuit
Id. 	(italics and boldface in original).
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39
Further, 	Compass 	points 	to 	International 	Patent 	Application 	No. 	Wo/2019/081764
Id.
Id. 	Compass asserts that information
produced in discovery in 2025. 	Id.; 	see 	ECF 234-8; ECF 234-9.
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40
As indicated, Compass contends that its c
at 20. However, this misstates the standard.
Faulconer
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41
Compass had the information necessary to plead counterclaims
filing deadline of May 19, 2025. Compass refutes its own position
by asserting:
-1 at 8. 	Moreover,
actions, as described in its Opposition, speak volumes. ECF 234-1 at 17. Compass
claims it ended the relationship with Thompson based on his conduct, yet it now claims to have
just discovered the conduct in issue. 	Id.
The information that Compass obtained in discovery may strengthen a contention that
Compass harbored from the outset of the litigation 	that Thompson had already begun ketanserin
research as of 2019, despite his claims to the contrary. But, Compass did not need the emails to
lodge its claim.
As to counterclaims I and II,
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42
Moreover,
ECF 237-1, ECF 237-2, ECF 237-3, ECF 237-4 	The emails indicate that in 2019
Compass came to the conclusion that Professor Thompson had misrepresented the status of his
ketanserin research in his discussions with Compass.
email chain beginning August 29, 2019, 	Hurley wrote to Malievskaia and
other Compass employees. ECF 239 at 25. He stated 	just wanted to draw your attention to a
psilocybin-related poster abstract from Scott Thompson's group, which was released yesterday
ahead of the Society for Neuroscience annual meeting in October (which I plan to attend). 	Id.
wrote, 	id. 	As they would have submitted
this abstract around late April [of 2019], it seems that their psilocybin programme is likely to be
well under way 	should we be concerned about our collaboration with them, given that they
proposed to perform the same experiments for our project? 	(Boldface in original). 	A
Compass employee, Hans Eriksson responded, 	id.
a call with Thompson to discuss the abstract. 	Id. 	at 22.
In an email of October 25, 2019, Hurley messaged the same group of Compass employees.
ECF 239 at 27. He stated, 	id.: 	I would like to share with you an update from my time at the SfN
annual meeting. Earlier in the week I met with Scott Thompson and yesterday I visited the poster
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43
from his PhD student on Psilocybin 	Explaining that Thompson had shared that he had begun
small scale experiments with psilocybin and ketanserin in mice, Hurley said, 	id.: 	Whilst these
results are encouraging, they do contradict Scott's previous reassurance to us on 24/09/19 that they
were not undertaking experiments in mice. 	17 	Hurley then proceeds to list the statements about the
experimental process that 	unequivocally confirmed 	Id. 	Hurley concludes the
email as follows, 	id. 	I will share with you my other notes and insights from the conference upon
my return to London, but for now 	I thought it was important to inform you of these developments.
(Emphasis added).
Then, in an email chain beginning on November 12, 2019, Hurley wrote to the same
Compass group, recapping internal meetings and recent developments. 	Id. 	at 31. He said, 	id.:
Despite receiving assurances from Scott Thompson that his group is not running our planned
Psilocybin experiments, it became clear at SFN (from speaking to him and from seeing his PhD
Id.
Further, Hurley stated, 	id. 	We agreed that Scott has lost our trust and it is unlikely that this could
be recovered by proceeding with the collaboration 	Notably, Hurley stated, 	id. 	Based on the
above, 	I would like to recommend that we withdraw from the proposed collaboration.
(Boldface in original). He added, 	id.: 	I propose that I should contact Scott to explain that as the
experiments for this collaboration are ongoing, we do not believe that our support is necessary and
are not comfortable with supplying the Psilocybin to him 	Hurley also asked Malievskaia and
Lars Wilde, another Compass employee, 	approach 	Id.
Notably, Malievskaia replied, stating, 	id. at 30
Thereafter, Hurley wrote
17 	Ordinarily, I would write the date as follows: 09/24/19.
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44
to Thompson 	with him. 	; 	see 	ECF 51 	at 16 n.5;
I was referring to the fact that the studies they proposed, they seem to, while
they were proposing these studies, they seem to have done the [sic] some of
experiments. And not only they have done these experiments, but they were
submitting them for publication. And they were presenting the poster at the Society
of Neuroscience while leading us to believe that they are proposing these
experiments that have never been done.
Further, she stated, 	id. 	at 41 	42 (Tr. at 153-54) (emphasis added):
The significance is not that they were going to be published, the significance
was that they asked us for [$]450,000 of funding to support the study that they have
already done. And not only that, but they also asked us to provide a GMP quality,
a proprietary formulation of COMP360, which is a controlled substance, for the
study that they have already done. How -- our concern was how would we, what
would we support, what would we fund if the study has already been done, and how
would controlled substance be used if the experiments had been done already. 	In
my mind, it was a fraud, both financial and fraud involving a controlled substance.
The following colloquy is also pertinent, 	id. 	at 42 (Tr. at 154):
Q. 	And this was your view based on the statement that's mentioned in this email
[of August 29, 2019] from the abstract that states, Experiments with psilocybin and
ketanserin are in progress?
A. Yes.
deposition testimony reflects that in 2019 	not 2025 	she believed
constituted fraud. It is also 	internal emails that Hurley,
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45
Malievskaia, and other Compass personnel shared the same view and, on this basis, Compass
terminated its collaboration with Thompson. 	that it did not come into
possession of information to lodge counterclaims I and II until July of 2025 	is specious.
As to counterclaims III and IV, from the outset, Compass has maintained that there were
no Psilocybin Trade Secrets and that plaintiffs knew it.
Stating a viable DTSA claim requires a plaintiff plausibly to allege that it owns a trade
secret. 	Samuel Sherbrooke Corp., Ltd v. Mayer, 	159 F.4th 252, 254 (4th Cir. 2025). 	But, long
before Compass filed the counterclaims, Compass contended that plaintiffs did not possess a trade
secret.
is pertinent. Compass argued
there that by February 2021 the Psilocybin Trade Secrets no longer existed;
application, containing the very same alleged trade secrets, was published to the world. ECF 24
at 28 	30; 	see 	ECF 95-1 at 9 	10. 	Terran has no standing to sue
for alleged misappropriation of the Psilocybin Trade Secrets, and the DTSA and MUTSA claims
should be dismissed. 	ECF 24 at 31.
(ECF 51-
1), filed in 2023, Compass claimed that by 2019 the Psilocybin Trade Secrets were disclosed. 	Id.
at 15, n. 4. It said, 	id. 	The inescapable inference to be drawn is that, after UMB filed the patent
application, the alleged Psilocybin Trade Secrets were secret no more.
Compass reiterated this contention in its third motion to dismiss (ECF 95-1), filed in March
2024 	y calling the information 	then-trade secret, 	Terran acknowledged
that the information lost its trade secret status when Thompson and UMB chose to include the
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46
trade secrets in their own August 13, 2019 patent application 	Id. 	at 14 n.1. Compass advanced
this same argument in its reply (ECF 105). 	Id. 	at 8 n.1.
(ECF 149), filed in April 2025,
is again relevant. 	There, Compass argued that the Psilocybin Trade Secrets were not secret and
that Compass had proof that plaintiffs had such knowledge. 	Id. 	at 8
long before the first alleged contact between Plaintiffs and
Compass . . . multiple researchers 	publicized 	that the administration of 5- HT2A antagonists,
effects. 	Id. 	at 8 (boldface in original; alteration added). Compass also emphasized that plaintiffs
knew that such information had been publicized, asserting, 	id. 	And Plaintiffs know that
UMB and Professor Thompson cited that 1998 publication in their own provisional patent
application. 	18 	that
it could not have lodged the counterclaims prior to discovery. 	ECF 234-1 at 19.
With respect to counterclaims III and IV, Compass also cites Perez, filed in 2019, and
Perez filing, based on emails recently produced in discovery.
The emails (ECF 234-8 and ECF 234-9) consist of outside parties commenting on the publication
See 	Press Release, Terran Biosciences
Inc., Terran Biosciences and Blumentech S.L. announce the acquisition of a patent portfolio
covering the groundbreaking discoveries of prominent psychedelics researcher Dr. Jordi Riba
(April 	13, 	2022), 	https://www.prnewswire.com/news-releases/terran-biosciences-and-
18
because the information was already publicly known or available. This is a merit
161 at 27 (internal citation omitted).
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47
blumentech-sl-announce-the-acquisition-of-a-patent-portfolio-covering-the-groundbreaking-
discoveries-of-prominent-psychedelics-researcher-dr-jordi-riba-
301524938.html.[https://perma.cc/MG64-QCZ3]; 	see also 	ECF 234-8 at 2; ECF 234-9 at 2.
Compass 	did 	not 	require 	discovery 	from 	plaintiffs 	to 	uncover 	the 	press 	release
disseminated by Terran in April 2022. 	See 	ECF 234-8 at 2; 	see 	Terran, Press Release, 	supra.
Compass does not identify any other information produced in discovery that amounts to
information previously unavailable to or unknown to Compass. ECF 234-1 at 19.
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Judge Bredar recognized that “‘a wealth of newly alleged facts”, not previously accessible
to the plaintiffs, emerged in discovery. Jd. But, he said, id.: ‘Plaintiffs’ problem is—while they
now have many more facts to support a common law unfair competition claim—they already had
enough facts to plausibly allege such a claim when they filed their First Amended Complaint.” Jd.
As Judge Bredar put it, “the question is not whether Plaintiffs now have more evidence on which
to ground a new claim than they had before, but whether they had enough evidence to make out
that claim before the amendment deadline expired.” Jd. at 451 (emphasis in original).

The case of Crouch v. City of Hyattsville, Md., DKC-09-2544, 2012 WL 718849 (D. Md.
Mar. 5, 2012), also provides guidance. There, shortly after discovery closed, the plaintiff attempted
to amend his complaint to add two claims. /d. at 3. Despite contending that the core operative
facts remained the same, the plaintiff asked the court to grant leave to amend because “he learned
of facts supporting these claims for the first time during the course of discovery.” Jd. at *2.
Observing that the plaintiff had repeatedly raised similar arguments in the case, before bringing
them as claims, Judge Chasanow found “the fact that Plaintiff may not have had sufficient evidence
to prove a...claim before the deadline for the amendment of pleadings had no bearing on his
ability to plead a... claim in a timely manner.” /d. at *3 (alterations added). She also said, id:
“This is true especially given that he was apparently aware of a potential . . . claim ‘since the
inception of this case.’ There is simply no showing of good cause here to permit Plaintiff to amend
his pleadings to adda... claim.” /d. (alterations added) (citations omitted).

Judge Gallagher declined to find good cause to amend in Brightview Grp., LP v. Teeters,
SAG-19-2774, 2020 WL 4019172 (D. Md. July 16, 2020). There, following multiple
modifications of the scheduling order, both during discovery and after the deadline for amendment

of pleadings, Brightview, the plaintiff, moved to amend its complaint to add a new claim of

48

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“Tortious Interference with Business Relations”. Jd. at *3. Judge Gallagher determined that the
plaintiff had not moved diligently because it “had notice of most [of] the facts underlying its
tortious interference claim at the time it filed its Amended Complaint as of right” and before the
deadline for amendments. /d. at *5 (alteration added) (emphasis in original). She stated, id. at *6:
“I]t is apparent to the Court, as discussed above, that the vast majority, if not all, of the factual
allegations contained in the [proposed amended complaint] could have been alleged months in
advance of the amendment deadline in the Scheduling Order.”

According to the court, Brightview’s claims of recent factual discoveries were “beside the
point.” Jd. Judge Gallagher reasoned: “None of these ‘new’ discoveries changes the fact that, since
the Court first issued its Scheduling Order, Brightview had notice of sufficient facts to plead its
request for attorneys’ fees, and its tortious interference claim. .. .” Jd. Finding a lack of good cause,
Judge Gallagher ruled that the “time for amending the complaint in the instant case, in which
discovery is all but complete, has passed.” Jd. at *7.

In Washington D.C. Cement Masons Welfare Fund v. Rapid Response Constr., Inc., AW-
04-1090, 2005 WL 8174766 (D. Md. May 20, 2005), a defendant moved to add a counterclaim
following the close of discovery, “on the basis of Defendant's belief that Plaintiffs ‘willfully and
intentionally interfered with Defendant's contracts with the general contractor.’” Jd. at *1. When
defendant answered the complaint, “‘Defendant suspected that Plaintiffs had somehow obstructed
Defendant's ability to perform and be paid under its contract with the general contractor.’” Id.
According to the defendant, “this suspicion was proven correct during the course of discovery.”
Id. The court said: “Although Defendant asserts that the counterclaim arose from ‘information
disclosed during a deposition during discovery,’ Defendant's own statements belie this claim.” Jd.

at *2. The court noted that defendant “provides this Court with no reason as to why it did not, at

49

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that time [of its suspicion] or sometime soon thereafter, also assert a counterclaim based on these
suspicions.” Jd. (alterations added). Therefore, the court found: “Defendant was not diligent in
pressing its counterclaim at first opportunity... .” Id.

The case of Fid. & Guar. Life Ins. Co. v. United Advisory Grp., Inc., WDQ-13-0040, 2016
WL 158512 (D. Md. Jan. 12, 2016), is also pertinent. Fidelity, the plaintiff, sought to add a claim
immediately after the close of discovery. /d. at *2. It argued “that good cause exist[ed] to amend
the Scheduling Order because the proposed amendment [was] based on facts obtained in discovery
after the deadline for amending the pleadings under the Scheduling Order had passed ... .” Jd. at
*A (alterations added). Judge Quarles wrote that Fidelity made “contradictory assertions regarding
the novelty of the information.” /d. at *5. He noted that Fidelity posited that “all of the Defendants
were already on notice from the original Complaint and the Amended Complaint that Plaintiff was
asserting facts which could support [its claim].” Jd (alterations added). However, Fidelity
“simultaneously argue[d] that it did not have knowledge of these facts until the close
of discovery and therefore could not have filed its motion earlier.” Jd. Judge Quarles stated, id.:
“It is hard to imagine a clearer example of the phrase, ‘having your cake and eating it, too.’”
Examining Fidelity’s earlier motions, he found: “It is evident from Fidelity's own arguments that
it had knowledge sufficient to state a claim . . . when it filed its initial claim, or, in the alternative,
when it filed its Amended Complaint.” Jd. at *6 (alterations added). The court concluded:
“Fidelity's specious claim that the delayed discovery in the case created good cause to delay its
filing is insufficient to overcome the Rule 16(b)(4) burden here.” Jd.

Many other cases reach similar conclusions. See, e.g., Rockwell Mining, LLC vy.
Pocahontas Land LLC, 749 F. Supp. 3d 660, 669 (S.D.W. Va. 2024) (stating that defendant “knew

of the underlying conduct on which it bases the proposed . . . claim when the case began, [and]

50

51
Pure Fishing, Inc. v. Normark Corp., 2012 WL 3062683, *7 (D.S.C.
July 26, 2012) (finding lack of good cause when a party seeking to amend relies on information
obtained during discovery that i 	[the] information previously
(alteration added);
What Judge Bredar said in 	Cunney v. Patrick Commc'ns LLC, JKB-13-2519, 2015 WL
6783010, at *5 (D. Md. Nov. 6, 2015), is apt here, albeit in regard to defendant rather than
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52
plaintiffs 	Plaintiff's amended FAC presents his case in brighter color and sharper focus. The
problem is that well over two years have elapsed since the commencement of this suit. 	The court
added 	, 	despite
Plaintiff's conclusory assertion in his Motion that 	additional facts relevant to the issues in the case
became apparent 	during discovery 	Id. at *5. As such, the court concluded that the plaintiff
failed to show good cause for the delay in seeking to amend the complaint. 	Id.
Simply put, a movant does not establish good cause merely because discovery strengthens
or supports an existing contention. 	See Trustmark Inc. Co. v. Gen. & Cologne Life Reinsurance
Co. of Am., 	424 F.3d 542, 553 (7th Cir. 2005) 	rejecting assertion of good cause when movant
merely 	that it did not confirm its suspicions of . . . the facts supporting its equitable
estoppel claim 	until . . . the depositions . . 	(alterations added). In other words,
could have included these allegations at the outset of
this case 	Buie v. Charter Commc'ns, No. 617CV03007DCCJDA, 2018 WL 11357530, at *3
(D.S.C. Dec. 14, 2018) 	appears to merely
slightly strengthen what was already a pretty strong inference
lack of diligence. 	Id.
Here, suit was filed in 2022. Well before the deadline for the amendment of pleadings,
Compass has had information resembling what it claims it learned for the first time in discovery.
See 	ECF 149 at 8 	9. Compass obtained information that might provide more detail for the claims
it could have lodged earlier. But, discovery that merely adds detail to existing information does
not constitute good cause. 	See Thomason, 	2016 WL 11565418, at *7 	Plaintiff has failed to show
that the changes incorporated into his proposed complaint are, in fact, based on evidence obtained
during deposition testimony and that this evidence did not merely aid Plaintiff in fleshing out
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53
claims and allegations that could have been raised prior to the deadline. 	see also 	Morrissey v.
ASD Shared Servs., LLC
of facts relevant to [belatedly raised] claims later in discovery does not show that they could not
(alterations added); 	Hutton v. Hydra-Tech, Inc., No. 1:14CV888, 2017
WL 2462646 (M.D.N.C. June 6, 2017) (finding no good cause to add a claim when enough facts
more varied and more detailed
available later.), 	report and recommendation adopted sub nom., No. 1:14CV888, 2017 WL
2790526 (M.D.N.C. June 27, 2017). 	As such, Compass was not diligent in lodging its
counterclaims.
Rule 16(b)(4) 	cause requirement 	is
Faulconer, 808 Fed. App'x at 152. And, inquiries as to diligence focus on
Elat, 993 F. Supp.
2d at 520. In my view, Compass has not shown the diligence required by Rule 16, so as to warrant
leave to add the counterclaims.
Among other things, the FAC did not alter the allegations in the suit as to Compass. Rather,
two individuals whose conduct has been at issue since the inception of the case were added as
defendants because of their departure from the corporate defendant. 	There is nothing in the
substance of the FAC as to Compass that opened any door so as to justify the belated filing of
counterclaims, for which Compass long had ample notice.
It is worth noting that a bevy of new defense counsel entered the case for Compass in April
of 2025. 	See, 	e.g., ECF 132; ECF 133; ECF 134; ECF 141; ECF 142, ECF 155.19 	The filing of
the counterclaims may have been the brainchild of new counsel. But, in the context of this case, a
19 	Local counsel did not change.
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54
change in counsel does not justify the belated filing of the counterclaims. Compass offers no viable
explanation as to why the discovery was needed to assert the claims . 	See 	Matter of Under the
Bridge Watersports, LLC, GLR-20-1111, 2022 WL 1027778, at *5 (D. Md. Apr. 6, 2022) (finding
no good cause when the movant lacked an explanation as to why the asserted facts found were
needed to assert claims); 	KVC Waffles Ltd. v. New Carbon Co., LLC, 	GLR-20-195, 2021 WL
2476459, at *3 (D. Md. June 17, 2021) 	(denying counterclaims due to lack of good cause as
does not provide an explanation in its Motion regarding how [the new information]
supports its counterclaims or why [the new information] was 	needed 	for its counterclaims to
move forwar 	(alteration added).
B. Rule 15 (a)
Assuming, 	arguendo, that Compass has satisfied Rule 16(b)(4), the Court must next
consider Rule 15(a). As previously stated, the Fourth Circuit has interpreted Rule 15(a) to provide
to the opposing party, there has been bad faith on the part of the moving party, or the amendment
Oroweat Foods Co., 785 F.2d at 509.
Plaintiffs argue that 	after
substantial completion of initial document production[] 	is not only unduly prejudicial- it is
ECF 229-1 at
7. They point out
Id. 	at 17.
Plaintiffs add that the coun 	. . . substantial new discovery by Plaintiffs to
Compass to defend against these claims. . . 	Id
reliance upon the alleged misrepresentations . . . discovery on the economic relationships and
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55
contracts. . . as well as discovery on what actually caused any business interruptions or harm to
Id.
Compass counters that it 	satisfies the more lenient requirements of Rule15(a)(2), as its
Counterclaims are timely and will not cause prejudice to Plaintiffs 	234-1 at 15 	16.
Compass also insists that there would be no need for further discovery, as it has already produced
the information that it believes plaintiffs would need. 	Id. 	at 23. In any event, Compass maintains
that additional discovery would not cause prejudice, because any prejudice could be ameliorated
Id. 	Compass
Id.20
In their Reply (ECF 239),
Id. 	at 13. 	In their view, the counterclaims will require an investigation into
and further discovery. 	Id.; 	see 	ECF 208
at 26, 27, 28, ¶¶ 37, 41, 46, 47. 	Plaintiffs cite the need for
-called
ECF 239 at 13.21
20 	The deadline for the parties to complete all remaining discovery was November 20,
2025. ECF 270 at 1. This matter was fully briefed as of September 12, 2025. 	See 	ECF 239.
21
attempt to square its previous position [in opposition to the FAC] that minimal changes in the
FAC. . . would be prejudicial, but Plaintiffs will suffer no prejudice with the addition of four new
It is true that, in its opposition to the FAC
untenable and inefficient, but it is prejudicial to Compass. This case has already been pending for
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56
T 	earlier motions to amend, which I granted,
FAC added two New
Defendants who were previously affiliated with Compass when suit was initially filed, and whose
conduct has always been central to the litigation. The amendment of the suit did 	not require
Compass to conduct any discovery that it otherwise would not conduct 	The same
cannot be said with regard to the counterclaims.
This case is also in a very different posture. ECF 1. Defendants have filed a voluminous
summary judgment motion (ECF 304), with more than 110 exhibits. 	Compass has also filed
challenges to expert opinions. 	ECF 315, ECF 316. 	due
on December 19, 2025.22 	To allow these counterclaims to proceed would dramatically expand the
case, upend the schedule, and impact the 	ability to proceed in a case that was almost three
years old when the counterclaims were filed.
The Fourth Circuit 	s ruling in 	Newport News Holdings Corp. v. Virtual City Vision, Inc.,
650 F.3d 423 (4th Cir. 2011), is instructive. There, shortly before trial, the defendant asserted six
counterclaims, without seeking leave of court. 	Id. 	at 439. 	The district court subsequently denied
for leave to file its counterclaim. . . finding that it was prejudicial and
id
it in a timely manner, without last-minute and unjustified upheaval of the schedule that will draw
the case out for an 	Id. at 9. The FAC
Id 	at 8. Similarly, in its opposition to the Third Amended
Id. at 18.
at odds with its stance here. 	But, I did not credit those
contentions. Nor are 	a basis on which to rule in favor of plaintiffs.
22 	As of 5:00 p.m. on December 19, 2025, plaintiffs 	motion has not yet been filed.
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57
unduly delayed in bad faith 	Id. 	On appeal, the Fourth Circuit concluded that under Rule 15 (a)
the district court's finding of prejudice was not an abuse of discretion. 	Id. 	at 440. Citing 	Laber,
438 F.3d 427, 	the Fourth Circuit agreed with the district court that the addition of six new
counterclaims would prejudice the plaintiff and might entail the need for further discovery. 	Id.
The defendant claimed it did not seek to file the counterclaim until it 	received NNHC's
financial records in late December 2008, and had them interpreted by an expert, [because] VCV
lacked sufficient legal foundation to file the counterclaim. 	Id. 	The Fourth Circuit stated, 	id:
his explanation rings hollow because none of the counts in the counterclaim relied primarily on
allegations regarding NNHC's financial records. 	The same rationale applies here.
The Fourth Circuit cited 	Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d
922, 940 	41 (4th Cir.1995). 	See Newport News, 650 F.3d at 440. In 	Lone Star, under Rule 15, a
district court denied a counterclaim filed during the final stages of discovery. The 	Newport News
Court said, 650 F.3d at 440 	41 (alteration in original):
We have upheld a district court's denial of leave to file a counterclaim in
substantially similar circumstances. In 	Lone Star Steakhouse, 	the defendant in a
trademark infringement suit sought leave, in the last days of discovery, to add a
counterclaim alleging that the plaintiff had committed fraud. 	See 	43 F.3d at
940 	41. The defendant based its claim on information that, according to the district
court, it possessed approximately three months before requesting leave to file the
counterclaim. The district
have seriously prejudiced Plaintiffs and placed them at risk of further infringement
because the amendment would have del 	Id. 	at 940.
In affirming the decision of the district court, we found that the record did not
support the defendant's contention that it delayed its counterclaim because it needed
to conduct further investigation. 	Id.
We also held that the amendment 	would have substantially prejudiced Plaintiffs
and would have significantly changed the nature of the litigation 	because
[i]nserting the defense of fraud in the case on the last day of discovery would have
raised new issues, which were not involved in the case during the discovery and
were not the subject of Plaintiff's discovery and trial preparation.
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58
Compass seeks to distinguish 	Lone Star, claiming that Compass
its Counterclaims only upon receiving discovery 	-1 at
24. But, as previously discussed in regard to Rule 16, this argument is fallacious. Compass also
attempts to distinguish 	Newport News, 	650 F.3d at 440
sought leave to file a counterclaim less than one month before . . . 	-1 at 23. 	But,
that is not a distinction of any significance here, with dispositive motions now pending.
a new claim untimely pled is sought to be added near or at the close of discovery,
the prejudice to the defendant is to[o] great to permit it. 	McKinney v. UPS Freight, No. CV 7:08-
2264-HMH-BHH, 2009 WL 10710976, at *3 (D.S.C. Sept. 3, 2009) (alterations added) (denying
with
no discovery whatsoever on that claim or will be forced to seek an extension of time
JPS Elastrometrics Corp. v. Jones Day, No. CV 6:11-2960-TMC, 2013 WL 12158591
(D.S.C. Mar. 12, 2013), is instructive. 	There, the plaintiff moved to add a new claim during
discovery. 	Id. 	at *1. 	The court found that the plaintiff was not diligent because the facts it claimed
were revealed in discovery and justified good cause were already known to the plaintiff prior to
the amendment deadline. 	Id. at *2. Additionally, the 	JPS 	Court found that a new claim would be
prejudicial to the defendant, stating, 	id. 	(alterations 	Although time remains in the
discovery process and the case has not yet been set for trial, this case is now fifteen months old,
and, over those fifteen months, [defendant] has expended significant resources in a discovery effort
based solely on the [previous claim]. 	The court added: 	While the amendment does not allege
new facts, it does change the scope and direction of the case.[] 	Id. (alterations added). Given the
current stage of the litigation, the court found that the discovery that would be necessary would be
prejudicial. 	Id..
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59
In 	Jeffries v. Prince George's Cnty., 	AAQ-22-526, 2025 WL 590433 (D. Md. Feb. 24,
2025), 	the 	plaintiff 	did 	not 	file 	her 	motion 	to 	add 	a 	new 	claim 	until 	September 	5,
2024 	well past the April 24, 2024, deadline for amended pleadings. 	Id. 	at *6, 	aff'd, 25-1456,
2025 WL 2694382 (4th Cir. Sept. 22, 2025) 	court found
the record establishes her knowledge 	by at least the Summer
of 2022. 	Id. 	The court also said, 	id. 	although Plaintiff stated during the hearing that no
additional discovery would be required, her Motion states otherwise 	Observing 	the parties
were close to the end of discovery and summary judgment briefing was imminent 	he court
denied 	plaintiff 	leave 	to 	amend 	would 	result 	in 	additional discovery and,
thus, prejudice 	e defendant. 	Id. 	at *6.
Numerous cases reach similar conclusions. 	See, 	e.g., 	Moke Am. LLC v. Am. Custom Golf
Cars, Inc., 	No. 3:20CV400 (DJN), 2021 WL 11276921, at *2 (E.D. Va. Nov. 15, 2021) (denying
leave to amend because 	the facts underlying 	new counterclaims are not new and
could have been alleged long ago 	far too late in the discovery process and
too close to the deadline for motions for summary judgment 	4D-Enters., LLC v. Aalto
Hyperbaric Oxygen, Inc., No. 119CV01504AJTIDD, 2020 WL 13200228, at *2 (E.D. Va. July
10, 2020) (concluding that the newly added counterclaim, premised on a new theory of liability,
was untimely and prejudicial because it 	raises a range of factual and legal issues not within the
) (alteration
added); 	Three Rivers Landing of Gulfport, LP v. Three Rivers Landing, LLC, No. 7:11-CV-00025,
2013 WL 791313 at *3 (W.D. Va. Mar. 4, 2013) (denying leave to amend to add counterclaims
during discovery because 	new claims . . . almost certainly would require new and additional
avenues of discovery to be explored and would likely prevent the case from moving forward and
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being resolved in a timely fashion 	; 	Exec. Risk Indem., Inc. v. Charleston Area Med. Ctr., Inc.,
No. 2:08-CV-00810, 2010 WL 4117050, at *3 (S.D.W. Va. Oct. 19, 2010) (stating that 	adding
two new and substantially different causes of action when discovery is almost complete will also
prejudice [the plaintiff.] 	) (alteration added); 	Robinson v. Harvey, 	2007 WL 5029289, at *9
(M.D.N.C. June 21, 2007) 	Complaint to raise additional claims
that would potentially require further discovery would substantially delay disposition of this case
), 	aff'd, 	254 F. App'x 250 (4th Cir. 2007).
The Scheduling Order set a deadline of May 19, 2025, for amendment of pleadings. ECF
146. Compass filed the counterclaims on July 25, 2025. ECF 234-1 at 15. It blames plaintiffs for
the need to add belated counterclaims, but the facts unequivocally establish that the assertion is
pretextual. 	For one thing, apart from adding as defendants two individuals whose conduct has
been central to the litigation, because of a change in their employment status, the suit made no
changes to the claims. Moreover, Compass has long had sufficient knowledge to assert the claims
embodied in the counterclaims. They significantly broaden the scope of the litigation. To properly
defend against the proposed counterclaims, additional discovery would be required, which will
certainly impact the current schedule in a case filed more than three years ago, with dispositive
motions already pending.
V. Conclusion
To allow Compass to add counterclaims at this late stage in the litigation would unduly
delay the case, burden the court, and prejudice the plaintiffs.23 	As the Second Circuit has said, at
23 	Plaintiffs also argued that the counterclaims I and II should be dismissed due to the
statute of limitations, and that counterclaims III and IV are subject to dismissal under 	Noerr-
Pennington 	doctrine. 	See 	ECF 229-1 at 18 	22. However, in view of my ruling, I need not address
these contentions.
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a late stage of the litigation. . . a new counterclaim that raises issues beyond the scope of the new
claims made in the most recent amended complaint will usually cause escalating prejudice to the
counterdefendant and undue expansion of litigation that the court is charged with managing
GEOMC, 918 F.3d at 100.
For the reasons stated, I shall 	Motion. An Order follows, consistent with
this Memorandum Opinion.
Date: December 19, 2025 	_____/s/
Ellen Lipton Hollander
United States District Judge
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