Schmuckley et al v. Rite Aid Corporation

Filing 227

ORDER signed by District Judge Kimberly J. Mueller on 7/8/2019 GRANTING 224 Motion for Extension and ORDERING that Plaintiffs shall have until 8/26/2019 to either stipulate with Defendant for an agreed-upon amendment to correct the naming of Defendant in this matter, or to otherwise seek leave of the Court to amend their pleadings. (Huang, H)

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XAVIER BECERRA
Attorney General of California
VINCENT DICARLO
Supervising Deputy Attorney General
BERNICE L. LOUIE YEW, State Bar No. 114601
Deputy Attorney General
E-mail: [e-mail]
EMMANUEL R. SALAZAR, State Bar No. 240794
Deputy Attorney General
E-mail: [e-mail]
2329 Gateway Oaks Drive, Suite 200
Sacramento, CA 95833-4252
Telephone: [phone]
Fax: [phone]

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Attorneys for State of California
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(Additional counsel listed on signature page)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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UNITED STATES OF AMERICA, et al., ex
rel. LOYD F. SCHMUCKLEY, JR.,

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Plaintiffs,
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v.
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2:12-CV-1699 KJM EFB
PARTIES’ JOINT MOTION TO
EXTEND TIME FOR PARTIES TO
MEET AND CONFER RE:
DEFENDANT’S 11TH AFFIRMATIVE
DEFENSE (IMPROPER DEFENDANT);
ORDER

RITE AID CORPORATION,
Related to ECF No. 187, 188

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Defendant.

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STATE OF CALIFORNIA ex rel. LOYD F.
SCHMUCKLEY, JR.,

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Plaintiff,
v.
RITE AID CORPORATION,
Defendant.

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PARTIES’ JOINT MOTION TO EXTEND TIME FOR PARTIES TO MEET AND CONFER RE:
DEFENDANT'S 11TH AFFIRMATIVE DEFENSE (IMPROPER DEFENDANT)

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PARTIES’ JOINT MOTION TO EXTEND TIME FOR PARTIES TO MEET AND
CONFER RE: DEFENDANT’S 11TH AFFIRMATIVE
DEFENSE (IMPROPER DEFENDANT)

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TO THE HONORABLE COURT:

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Plaintiff-Intervenor State of California (“California”), Qui Tam Plaintiff Loyd F.

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Schmuckley, Jr. (“Relator,” together with California, “Plaintiffs”), and Defendant Rite Aid

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Corporation (“Defendant” or “Rite Aid,” together with Plaintiffs, the “Parties”), by and through

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their respective counsel of record, for good cause shown, hereby request this Court to extend

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time for Parties to meet and confer regarding Rite Aid’s Eleventh Affirmative Defense (Improper

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Defendant) set forth in Rite Aid’s First Amended Answer to Relator’s First Amended Complaint

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[ECF NO. 146]1.
On January 25, 2019, the Court ordered the Parties to submit a joint statement concerning
Rite Aid’s Eleventh Affirmative Defense (Improper Defendant). ECF No. 187.
On February 8, 2019, the Parties filed a joint statement setting forth their agreement that

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more time is warranted to continue to address, and hopefully resolve, the issues and present them

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to the Court at a more appropriate time. ECF No. 188 (“Joint Statement”). In the Joint

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Statement, the Parties proposed to the Court that the Plaintiffs should have until July 15, 2019 to

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either stipulate with Rite Aid for an agreed-upon amendment to correct the naming of Rite Aid in

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this matter, or to otherwise seek leave of the Court to amend their pleadings to do so. Id. at 1.

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Plaintiffs further agreed that they would not file a motion to add a new defendant during this

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time until July 15, 2019, or earlier upon exhaustion of good-faith discussions. The Parties noted

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that the proposed timeline factored in the scheduling relating to Rite Aid’s motion challenging

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Plaintiffs’ sampling methodology and design, hearing of which the Court originally set for June

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28, 2019. Id. at 1, n.2.

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On June 18, 2019, the Court, on its own motion, moved the hearing date of Rite Aid’s

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motion challenging Plaintiffs’ sampling methodology and design to July 12, 2019 and reset any

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remaining filing deadlines. ECF No. 219.

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The same affirmative defense is set forth by Defendant as the Thirteenth Affirmative
Defense in its First Amended Answer to the State’s Complaint-in-Intervention [ECF No. 147].
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PARTIES’ JOINT MOTION TO EXTEND TIME FOR PARTIES TO MEET AND CONFER RE:
DEFENDANT'S 11TH AFFIRMATIVE DEFENSE (IMPROPER DEFENDANT); ORDER

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After a June 26, 2019 conference call, considering that the Parties will need to prepare

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and file on July 5, 2019 their remaining motion papers and prepare for the hearing set for July

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12, 2019, the Parties in good faith believe that more time is warranted to allow them to further

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meet and confer about Rite Aid’s Eleventh Affirmative Defense (Improper Defendant). Issues

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that the parties will need to continue to discuss, and request more time to resolve, in connection

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with a potential stipulation include:


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whether the Parties will agree that pleadings in the case will be amended pursuant

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to Federal Rule of Civil Procedure (“Rule”) 15(c) to substitute Thrifty Payless,

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Inc. d/b/a Rite Aid, a California Corporation, as the defendant in this action in the

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place of Rite Aid Corporation, a Delaware Corporation;


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whether all of Rite Aid’s prior discovery responses, representations, and

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stipulations would bind any newly named defendant as if it had originally

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appeared as the defendant in this action from the outset;


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purposes, including applicable statutes of limitation; and


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whether the amendment shall relate back to the original pleadings for all

how discovery requests to Rite Aid and/or any newly named defendant would be
addressed.

Based on the above, the Parties therefore jointly submit that good cause exists to extend

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the deadline for the Parties to complete the above meet-and-confer process from July 15, 2019 to

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August 26, 2019. The Parties maintain their respective positions and reservations of rights as set

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forth in the Joint Statement while these discussions contine. ECF No. 188 at 3-4. The Parties

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also maintain that no Party may claim prejudice based on the extended discussions in connection

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with a motion to amend the pleadings under Rule 15(c).

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///

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PARTIES’ JOINT MOTION TO EXTEND TIME FOR PARTIES TO MEET AND CONFER RE:
DEFENDANT'S 11TH AFFIRMATIVE DEFENSE (IMPROPER DEFENDANT); ORDER

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Respectfully submitted,

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Dated:

XAVIER BECERRA
Attorney General of the State of California
By

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/s/ Emmanuel R. Salazar
Emmanuel R. Salazar
Deputy Attorney General
Attorneys for Plaintiff-Intervenor STATE OF
CALIFORNIA

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Dated:

WATERS & KRAUS, LLP
By

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Dated:

/s/ Wm. Paul Lawrence, II
(as authorized on 6/28/2019)
Wm. Paul Lawrence, II (Pro hac vice)
Washington D.C. Metro Office
37163 Mountville Road
Middleburg, VA 20117
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Qui Tam Plaintiff
LOYD F. SCHMUCKLEY, JR.

MORGAN, LEWIS & BOCKIUS LLP
By

/s/ Michael Q. Eagan, Jr.
(as authorized on 6/28/2019)
Benjamin P. Smith
Michael Q. Eagan, Jr.
One Market, Spear Street Tower
San Francisco, CA 94105-1596
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Defendant
RITE AID CORPORATION

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PARTIES’ JOINT MOTION TO EXTEND TIME FOR PARTIES TO MEET AND CONFER RE:
DEFENDANT'S 11TH AFFIRMATIVE DEFENSE (IMPROPER DEFENDANT); ORDER

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ORDER
The Court, having considered the Parties’ Joint Motion to Extend Time for Parties to

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Meet and Confer re: Defendant’s 11th Affirmative Defense (Improper Defendant), finds good

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cause and ORDERS THAT Plaintiffs shall have until August 26, 2019 to either stipulate with

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Defendant for an agreed-upon amendment to correct the naming of Defendant in this matter, or

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to otherwise seek leave of the Court to amend their pleadings.

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IT IS SO ORDERED.
DATED: July 8, 2019.

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UNITED STATES DISTRICT JUDGE

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PARTIES’ JOINT MOTION TO EXTEND TIME FOR PARTIES TO MEET AND CONFER RE:
DEFENDANT'S 11TH AFFIRMATIVE DEFENSE (IMPROPER DEFENDANT); ORDER