Schmuckley et al v. Rite Aid Corporation

Filing 242

ORDER signed by District Judge Kimberly J. Mueller on 8/26/19 ORDERING that Plaintiff's, Motion to amend the pleadings filing deadline is 11/1/2019. Defendant's opposition to motion to amend to be filed by 12/6/19. Plaintiffs' reply re Motion to amend to be filed by 12/20/2019. Hearing on Plaintiff's Motion to Amend the pleadings 1/17/2020 at 10:00 a.m. (Mena-Sanchez, L)

1
2
3
4
5
6
7

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]

8
Attorneys for State of California
9
(Additional counsel listed on signature page)
10
IN THE UNITED STATES DISTRICT COURT
11
FOR THE EASTERN DISTRICT OF CALIFORNIA
12
13
14

UNITED STATES OF AMERICA, et al., ex
rel. LOYD F. SCHMUCKLEY, JR.,

15
Plaintiffs,
16
v.
17
18

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

19

Defendant.

20
21

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

22
23
24
25

Plaintiff,
v.
RITE AID CORPORATION,
Defendant.

26
27
28
PARTIES’ JOINT MOTION TO EXTEND TIME FOR PARTIES TO MEET AND CONFER RE:
DEFENDANT'S 11TH AFFIRMATIVE DEFENSE (IMPROPER DEFENDANT)

1
2

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

3

TO THE HONORABLE COURT:

4

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

5

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

6

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

7

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

8

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

9

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

10
11
12
13

Complaint [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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

On June 28, 2019, due to the continuance of the hearing on Defendant’s motion regarding

25

the sampling methodology and to allow the Parties adequate time to meet and confer, the Parties

26

jointly moved for an order allowing Plaintiffs until August 26, 2019 to either stipulate with

27
1

28

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].
1
ORDER ON PARTIES’ JOINT MOTION TO EXTEND TIME FOR PARTIES TO MEET AND CONFER RE:
DEFENDANT'S 11TH AFFIRMATIVE DEFENSE (IMPROPER DEFENDANT); ORDER

1

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

2

to otherwise seek leave of the Court to amend their pleadings. ECF No. 224. The Court, finding

3

good cause, granted the motion. ECF No. 227.

4

Subsequently, the Parties is continuing to meet and confer regarding the issues involved

5

with Rite Aid’s Eleventh Affirmative Defense (Improper Defendant), including California’s

6

issuance of related document requests and 30(b)(6) deposition notice. The Parties in good faith

7

believe that more time is warranted to allow them to further meet and confer. Issues that the

8

parties will need to continue to discuss, and request more time to resolve, in connection with a

9

potential stipulation include:

10



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

11

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

12

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

13

place of Rite Aid Corporation, a Delaware Corporation;

14



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

15

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

16

appeared as the defendant in this action from the outset;

17



18
19
20
21
22
23
24
25
26

whether the amendment shall relate back to the original pleadings for all
purposes, including applicable statutes of limitation; and



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
deadlines for the Parties to complete the above meet-and-confer process, as follows:
Event
Rite Aid Corporation’s declaration under oath
regarding relationship with/among
subsidiaries and Written
Responses/Objections to California’s
Requests for Production (“RFP”) Set No. 7

Deadline
Served by August 30, 2019

27
28
2
ORDER ON PARTIES’ JOINT MOTION TO EXTEND TIME FOR PARTIES TO MEET AND CONFER RE:
DEFENDANT'S 11TH AFFIRMATIVE DEFENSE (IMPROPER DEFENDANT); ORDER

1
2
3
4
5
6
7
8
9
10
11
12
13

Rite Aid Corporation’s production of
documents responsive to RFP Set No. 7 (to
the extent not withdrawn after Plaintiffs’
review of Rite Aid Corporation declaration)
Parties’ stipulation, if agreed upon, to amend
the named defendants with relation back
(including removal of Rite Aid Corporation
from pleadings)
Plaintiffs’ motion to amend the pleadings (if
necessary following Parties’ inability to
stipulate)
Defendant’s opposition to motion to amend
Plaintiffs’ reply re motion to amend
Hearing on Plaintiffs’ motion to amend the
pleadings

Completed by September 27,
2019

Filed by October 18, 2019

Filed by November 1, 2019

Filed by December 6, 2019
Filed by December 20, 2019
January 10, 2020, 10:00
a.m., Courtroom 3

The Parties maintain their respective positions and reservations of rights as set forth in
the Joint Statement while these discussions continue. ECF No. 188 at 3-4. The Parties also
maintain that no Party may claim prejudice based on the extended discussions in connection with
a motion to amend the pleadings under Rule 15(c).

14

Respectfully submitted,

15
16

Dated: 8/20/2019

17

XAVIER BECERRA
Attorney General of the State of California
By /s/ Emmanuel R. Salazar
Emmanuel R. Salazar
Deputy Attorney General
Attorneys for Plaintiff-Intervenor STATE OF
CALIFORNIA

18
19
20
21
22
23
24
25
26
27
28

Dated: 8/20/2019

WATERS & KRAUS, LLP
By /s/ Wm. Paul Lawrence, II (authorized on 8/20/19)
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.

3
ORDER ON PARTIES’ JOINT MOTION TO EXTEND TIME FOR PARTIES TO MEET AND CONFER RE:
DEFENDANT'S 11TH AFFIRMATIVE DEFENSE (IMPROPER DEFENDANT); ORDER

1
2
3
4
5
6
7

Dated: 8/20/2019

MORGAN, LEWIS & BOCKIUS LLP
By /s/ Michael Q. Eagan, Jr. (authorized on 8/20/19)
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

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
ORDER ON PARTIES’ JOINT MOTION TO EXTEND TIME FOR PARTIES TO MEET AND CONFER RE:
DEFENDANT'S 11TH AFFIRMATIVE DEFENSE (IMPROPER DEFENDANT); ORDER

1
2

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

3

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

4

cause and ORDERS that the schedule for the Parties as follows:

5
6
7
8
9
10
11
12
13
14
15
16
17
18

Event
Rite Aid Corporation’s declaration under oath
regarding relationship with/among
subsidiaries and Written
Responses/Objections to RFP Set No. 7
Rite Aid Corporation’s production of
documents responsive to RFP Set No. 7 (to
the extent not withdrawn after seeing
declaration)
Parties’ stipulation, if agreed upon, to amend
the named defendants with relation back
(including removal of Rite Aid Corporation
from pleadings)
Plaintiffs’ motion to amend the pleadings (if
necessary)
Defendant’s opposition to motion to amend
Plaintiffs’ reply re motion to amend
Hearing on Plaintiffs’ motion to amend the
pleadings

Deadline
Served by August 30, 2019

Completed by September 27,
2019

Filed by October 18, 2019

Filed by November 1, 2019
Filed by December 6, 2019
Filed by December 20, 2019
January 17, 2020, 10:00
a.m., Courtroom 3

IT IS SO ORDERED.
DATED: August 26, 2019.

19
20

UNITED STATES DISTRICT JUDGE

21
22
23
24
25
26
27
28
5
ORDER ON PARTIES’ JOINT MOTION TO EXTEND TIME FOR PARTIES TO MEET AND CONFER RE:
DEFENDANT'S 11TH AFFIRMATIVE DEFENSE (IMPROPER DEFENDANT); ORDER