Schmuckley et al v. Rite Aid Corporation

Filing 244

STIPULATION and ORDER signed by District Judge Kimberly J. Mueller on 9/27/2019 ORDERING the schedule for the Parties as follows: Rite Aid's Service of Responses/Objections due by 10/2/2019, Rite Aid's Production of Documents to be complete d by 10/25/2019, Stipulation to Amend Named Defendant due by 11/12/2019, Motion to Amend due by 12/2/2019, with Opposition due by 1/10/2020 and, Reply due by 1/24/2020, the Second Phase of Discovery shall be completed by 3/27/2020, Expert Disclosures due by 5/15/2020, with Rebuttal due by 6/26/2020, Expert Discovery shall be completed by 7/31/2020, and Dispositive Motions shall be heard by 12/11/2020 at 10:00 AM in Courtroom 3. (Huang, H)

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MORGAN, LEWIS & BOCKIUS LLP
ERIC W. SITARCHUK, Admitted pro hac vice
[e-mail]
KELLY A. MOORE, Admitted pro hac vice
[e-mail]
BENJAMIN P. SMITH, Bar No. 197551
[e-mail]
One Market, Spear Street Tower
San Francisco, California 94105-1596
Tel: [phone]; Fax: [phone]

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Attorneys for Defendant
RITE AID CORPORATION

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA and the
STATES OF CALIFORNIA, et al., ex rel.
LOYD F. SCHMUCKLEY, JR.,
Plaintiffs,

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v.

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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)
AND JOINT MOTION TO AMEND
SCHEDULING ORDER; ORDER
Related to ECF No. 187, 188, 239, 241,
242

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

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v.

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Case No. 2:12-cv-01699-KJM-EFB

RITE AID CORPORATION,
Defendant.

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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
SAN FRANCISCO

DB1/ 107497020.1

PARTIES’ JOINT MOT TO EXT TIME TO M&C
RE DEFT’S 11TH AFFIRMATIVE DEFENSE
AND AMEND SCHEDULING ORDER
CASE NO. 2:12-CV-01699-KJM-EFB

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

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TO THE HONORABLE COURT:

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Plaintiff-Intervenor State of California (“California”), Qui Tam Plaintiff Loyd F.
Schmuckley, Jr. (“Relator,” together with California, “Plaintiffs”), and Defendant Rite Aid
Corporation (“Defendant” or “Rite Aid,” together with Plaintiffs, the “Parties”), by and through
their respective counsel of record, for good cause shown, hereby request this Court to extend the
time for the Parties to further meet and confer regarding Rite Aid’s Eleventh Affirmative Defense
(Improper Defendant) set forth in Rite Aid’s First Amended Answer to Relator’s First Amended
Complaint [ECF NO. 146].1

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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 more time is warranted
to continue to address, and hopefully resolve, the issues and present them to the Court at a more
appropriate time. ECF No. 188 (“Joint Statement”). In the Joint Statement, the Parties proposed
to the Court that the Plaintiffs should have until July 15, 2019 to either stipulate with Rite Aid for
an agreed-upon amendment to correct the naming of Rite Aid in 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 time until July 15, 2019, or earlier upon exhaustion of good-faith discussions. The Parties
noted that the proposed timeline factored in the scheduling relating to Rite Aid’s motion
challenging Plaintiffs’ sampling methodology and design, hearing of which the Court originally
set for June 28, 2019. Id. at 1, n.2.

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On June 28, 2019, due to the continuance of the hearing on Defendant’s motion regarding
the sampling methodology and to allow the Parties adequate time to meet and confer, the Parties

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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].

MORGAN, LEWIS &
BOCKIUS LLP

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ATTORNEYS AT LAW
SAN FRANCISCO

DB1/ 107497020.1

PARTIES’ JOINT MOT TO EXT TIME TO M&C
RE DEFT’S 11TH AFFIRMATIVE DEFENSE
AND AMEND SCHEDULING ORDER
CASE NO. 2:12-CV-01699-KJM-EFB

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jointly moved for an order allowing Plaintiffs 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 to

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

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

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Thereafter, the parties continued to meet and confer in an attempt to come to an agreement

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on the identity of the correct defendant for this case without further discovery or law and motion

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practice, and exchanged a draft and final declaration of a Rite Aid Hdqtrs. Corp. officer in this

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regard.

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On or about August 20, 2019, the parties jointly moved for an order allowing Plaintiffs

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until October 18, 2019 to either stipulate with Defendant for an agreed-upon amendment to

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correct the naming of Defendant in this matter, or to otherwise seek leave of the Court to amend

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their pleadings. ECF No. 241. This Court granted the motion on August 26, 2019. ECF No. 242.

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After filing their joint motion on August 20, 2019, the Parties continued to meet and

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confer regarding the issues involved with Rite Aid’s Eleventh Affirmative Defense (Improper

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Defendant), including California’s issuance of related document requests and a 30(b)(6)

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deposition notice. To date, the parties have been unable to reach an agreement, and Plaintiffs

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seek discovery from Defendant. Additional meet and confer efforts are ongoing regarding:

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

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

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

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Inc. d/b/a Rite Aid, a California Corporation, and/or Rite Aid Hdqtrs Corp, a Delaware

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corporation, as the defendants in this action in the place of, or in addition to, Rite Aid

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Corporation, a Delaware Corporation;

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

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

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would bind any newly named defendant as if it had originally appeared as the

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defendant in this action from the outset;

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

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

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MORGAN, LEWIS &
BOCKIUS LLP

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ATTORNEYS AT LAW
SAN FRANCISCO

DB1/ 107497020.1

PARTIES’ JOINT MOT TO EXT TIME TO M&C
RE DEFT’S 11TH AFFIRMATIVE DEFENSE
AND AMEND SCHEDULING ORDER
CASE NO. 2:12-CV-01699-KJM-EFB

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

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

Due to the ongoing meet and confer and discovery efforts, the recent departure of Michael

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Q. Eagan from Morgan Lewis, and the involvement of Benjamin Smith in a Delaware Chancery

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Court trial in September 2019, the Parties jointly submit that good cause exists to extend

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deadlines for the Parties to complete the above meet-and-confer process, as follows:

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Current Deadline
[ECF No. 242]

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Event

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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

Served by August 30, 2019 N/A – completed

Rite Aid’s service of Written
Responses/Objections to
California’s Requests for
Production (“RFP”) Set No. 7 and
Rite Aid’s service of Written
Responses/Objections to Relator’s
RFP Set No. 2.

N/A

Served by October 2, 2019

Rite Aid Corporation’s production
of documents responsive to RFP
Set No. 7

Completed by September
27, 2019

Completed by October 25,
2019

Parties’ stipulation, if agreed upon,
to amend the named defendant
with relation back (including
removal of Rite Aid Corporation
from pleadings)

Filed by October 18, 2019

Filed by November 12,
2019

Plaintiffs’ motion to amend the
pleadings (if necessary following
Parties’ inability to stipulate)

Filed by November 1,
2019

Filed by December 2, 2019

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Defendant’s opposition to motion
to amend

Filed by December 6, 2019 Filed by January 10, 2020

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Filed by December 20,
2019

Filed by January 24, 2020

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Plaintiffs’ reply re motion to
amend
Hearing on Plaintiffs’ motion to
amend the pleadings

January 17, 2020, 10:00
a.m., Courtroom 3

TBD

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MORGAN, LEWIS &
BOCKIUS LLP

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ATTORNEYS AT LAW
SAN FRANCISCO

DB1/ 107497020.1

Proposed Modified Date

PARTIES’ JOINT MOT TO EXT TIME TO M&C
RE DEFT’S 11TH AFFIRMATIVE DEFENSE
AND AMEND SCHEDULING ORDER
CASE NO. 2:12-CV-01699-KJM-EFB

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The Parties maintain their respective positions and reservations of rights as set forth in the

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Joint Statement while these discussions continue. ECF No. 188 at 3-4. The Parties also maintain

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that no Party may claim prejudice based on the extended discussions in connection with a motion

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to amend the pleadings under Rule 15(c).

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Further, in light of the above, the Parties jointly move the Court to amend its prior

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scheduling order, ECF No. 239, by moving the current dates by 5 weeks to accommodate the

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proposed changes above, as follows:

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Event
Second Phase of Discovery
Completed
Expert Disclosures (other than
sampling methodology/design)
Rebuttal expert disclosures (other
than sampling methodology/design)
Expert Discovery Completed
Last Day to Hear Dispositive
Motions

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Current Date
February 21, 2020

Requested Modified Date
March 27, 2020

April 10, 2020

May 15, 2020

May 22, 2020

June 26, 2020

June 26, 2020
October 23, 2020 at 10:00
A.M. in Courtroom No. 3

July 31, 2020
December 4, 2020 at 10:00
A.M. in Courtroom No. 3

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Respectfully Submitted,

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Dated: September 26, 2019

XAVIER BECERRA
Attorney General of the State of California

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/s/ Emmanuel R. Salazar (authorized on 9/26/2019)

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Emmanuel R. Salazar
Deputy Attorney General
2329 Gateway Oaks Drive, Suite 200
Sacramento, CA 95833-4252
Tel: [phone]; Fax: [phone]
Email: [e-mail]
Attorneys for Plaintiff-Intervenor
STATE OF CALIFORNIA

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MORGAN, LEWIS &
BOCKIUS LLP

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ATTORNEYS AT LAW
SAN FRANCISCO

DB1/ 107497020.1

PARTIES’ JOINT MOT TO EXT TIME TO M&C
RE DEFT’S 11TH AFFIRMATIVE DEFENSE
AND AMEND SCHEDULING ORDER
CASE NO. 2:12-CV-01699-KJM-EFB

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Dated: September 26, 2019

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/s/ Wm. Paul Lawrence II (authorized on 9/26/2019)
Wm. Paul Lawrence II (Pro Hac Vice)
Washington D.C. Metro Office
37163 Mountville Road
Middleburg, VA 20117
Tel: [phone]; Fax: [phone]
Email: [e-mail]
Attorneys for Qui Tam Plaintiff
LOYD F. SCHMUCKLEY, JR.

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WATERS & KRAUS LLP

Dated: September 26, 2019

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MORGAN, LEWIS & BOCKIUS LLP
/s/ Benjamin P. Smith
Benjamin P. Smith
Attorneys for Defendant
RITE AID CORPORATION

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MORGAN, LEWIS &
BOCKIUS LLP

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ATTORNEYS AT LAW
SAN FRANCISCO

DB1/ 107497020.1

PARTIES’ JOINT MOT TO EXT TIME TO M&C
RE DEFT’S 11TH AFFIRMATIVE DEFENSE
AND AMEND SCHEDULING ORDER
CASE NO. 2:12-CV-01699-KJM-EFB

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

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and Confer re: Defendant’s 11th Affirmative Defense (Improper Defendant) and Joint Motion to

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Amend Scheduling Order, finds good cause and ORDERS that the schedule for the Parties as

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follows:

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Current Deadline
[ECF No. 242]

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Event

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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

Served by August 30, 2019 N/A – completed

Rite Aid’s service of Written
Responses/Objections to
California’s Requests for
Production (“RFP”) Set No. 7 and
Rite Aid’s service of Written
Responses/Objections to Relator’s
RFP Set No. 2.

N/A

Served by October 2, 2019

Rite Aid Corporation’s production
of documents responsive to RFP
Set No. 7

Completed by September
27, 2019

Completed by October 25,
2019

Parties’ stipulation, if agreed upon,
to amend the named defendant
with relation back (including
removal of Rite Aid Corporation
from pleadings)

Filed by October 18, 2019

Filed by November 12,
2019

Plaintiffs’ motion to amend the
pleadings (if necessary following
Parties’ inability to stipulate)

Filed by November 1,
2019

Filed by December 2, 2019

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Defendant’s opposition to motion
to amend

Filed by December 6, 2019 Filed by January 10, 2020

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Filed by December 20,
2019

Filed by January 24, 2020

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Plaintiffs’ reply re motion to
amend
Hearing on Plaintiffs’ motion to
amend the pleadings

January 17, 2020, 10:00
a.m., Courtroom 3

TBD

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Second Phase of Discovery

February 21, 2020

March 27, 2020

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MORGAN, LEWIS &
BOCKIUS LLP

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ATTORNEYS AT LAW
SAN FRANCISCO

DB1/ 107497020.1

Requested Modified Date

PARTIES’ JOINT MOT TO EXT TIME TO M&C
RE DEFT’S 11TH AFFIRMATIVE DEFENSE
AND AMEND SCHEDULING ORDER
CASE NO. 2:12-CV-01699-KJM-EFB

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Event
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Current Deadline
[ECF No. 242]

Requested Modified Date

Completed
Expert Disclosures (other than
sampling methodology/design)

April 10, 2020

May 15, 2020

Rebuttal expert disclosures (other
than sampling
methodology/design)

May 22, 2020

June 26, 2020

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Expert Discovery Completed

June 26, 2020

July 31, 2020

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Last Day to Hear Dispositive
Motions

October 23, 2020 at 10:00
A.M. in Courtroom No. 3

December 11, 2020 at 10:00
A.M. in Courtroom No. 3

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IT IS SO ORDERED.

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DATED: September 27, 2019.

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UNITED STATES DISTRICT JUDGE

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MORGAN, LEWIS &
BOCKIUS LLP

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ATTORNEYS AT LAW
SAN FRANCISCO

DB1/ 107497020.1

PARTIES’ JOINT MOT TO EXT TIME TO M&C
RE DEFT’S 11TH AFFIRMATIVE DEFENSE
AND AMEND SCHEDULING ORDER
CASE NO. 2:12-CV-01699-KJM-EFB