Schmuckley et al v. Rite Aid Corporation

Filing 260

STIPULATION and ORDER signed by District Judge Kimberly J. Mueller on 11/8/19 GRANTING 259 the Amended Joint Motion to Extend Time to Conduct Discovery and Meet and Confer. Plaintiff's Motion to Amend due by 4/3/2020 with Opposition due by 5/1/2020, and Reply due by 5/15/2020, Second Phase of Discovery Completed by 8/7/2020, Expert Disclosures due by 10/2/2020 with Rebuttal due by 11/13/2020, Expert Discovery Completed by 12/18/2020, and the Last Day to Hear Dispositive Motions shall be 5/28/2021 at 10:00 AM in Courtroom 3. (See order for further deadlines)(Kastilahn, A)

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XAVIER BECERRA
Attorney General
VINCENT DICARLO
Supervising Deputy Attorney General
BERNICE L. LOUIE YEW
Deputy Attorney General
EMMANUEL R. SALAZAR (SBN 240794)
Deputy Attorney General
[e-mail]
2329 Gateway Oaks Drive, Suite 200
Sacramento, CA 95833
Tel.: [phone]

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Attorneys for Plaintiff-Intervenor
STATE OF CALIFORNIA

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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.,

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Plaintiffs,
v.
RITE AID CORPORATION,

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Defendant.

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PARTIES’ AMENDED JOINT
MOTION TO EXTEND TIME FOR
PARTIES TO CONDUCT DISCOVERY
AND MEET AND CONFER RE:
DEFENDANT’S 11TH AFFIRMATIVE
DEFENSE (IMPROPER
DEFENDANT); ORDER
Related to ECF No. 187, 188, 241, 242,
244, 258

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

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

Plaintiffs,
v.
RITE AID CORPORATION,
Defendant.

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PARTIES’ AMND JOINT MOT TO EXT TIME TO
CONDUCT DISCOVERY AND M&C RE DEFT’S 11TH
AFFIRMATIVE DEFENSE
Case No. 2:12-cv-01699-KJM-EFB

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PARTIES’ AMENDED JOINT MOTION TO EXTEND TIME FOR PARTIES TO
CONDUCT DISCOVERY AND 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 time

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for Parties to conduct discovery and further meet and confer regarding Rite Aid’s Eleventh

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

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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

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Rite Aid’s Eleventh Affirmative Defense (Improper Defendant). ECF No. 187. On February 8,

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2019, the Parties filed a joint statement setting forth their agreement that more time is warranted

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to continue to address, and hopefully resolve, the issues and present them to the Court at a more

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appropriate time. ECF No. 188 (“Joint Statement”). In the Joint Statement, the Parties proposed

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to the Court that the Plaintiffs should have until July 15, 2019 to either stipulate with Rite Aid for

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an agreed-upon amendment to correct the naming of Rite Aid in this matter, or to otherwise seek

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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

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

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

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challenging Plaintiffs’ sampling methodology and design, hearing of which the Court originally

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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].
PARTIES’ AMND JOINT MOT TO EXT TIME TO
CONDUCT DISCOVERY AND M&C RE DEFT’S 11TH
AFFIRMATIVE DEFENSE
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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In July 2019, California propounded Request for Production of Documents, Set No. 7, and

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Relator propounded Request for Production of Documents, Set No. 2, both of which seek

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documents relevant to Rite Aid’s purported “improper defendant” defense.

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The parties continued to meet and confer in an attempt to come to an agreement on the
identity of the correct defendants for this case without further discovery or law and motion
practice, and exchanged a draft and final declaration of a Rite Aid officer in this regard.
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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The Parties continued to meet and confer regarding the issues involved with Rite Aid’s

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Eleventh Affirmative Defense (Improper Defendant), including Plaintiffs’ pending document

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requests and California’s 30(b)(6) deposition notice.

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On September 20, 2019, due to the ongoing meet and confer and discovery efforts, the

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recent departure of Michael Q. Eagan from Morgan Lewis, and the involvement of Benjamin

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Smith in a Delaware Chancery Court trial in September 2019, the Parties jointly moved to extend

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deadlines for the Parties to complete the above meet-and-confer process. The Court granted the

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motion. ECF No. 244.

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On October 9, 2019, California filed a motion to compel Rite Aid to designate the

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documents responsive to each of its pending requests for production of documents. On October

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23, 2019, Rite Aid Corporation filed a motion to extend the deadline for Rite Aid Corporation to

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produce documents responsive to California’s Request for Production of Documents, Nos. 1, 2,

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15, 16, and 17-38. The Court granted both motions, extending the deadline for Rite Aid

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

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Corporation to so produce until November 25, 2019. ECF No. 258.

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Relevant to this subject matter, still pending is Rite Aid Corporation’s production of

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documents responsive to Relator’s Request for Production of Documents Set No. 2. After good-

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faith meet-and-confer efforts, to date, the parties have been unable to reach an agreement, and

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

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regarding:


whether the Parties will agree that pleadings in the case will be amended pursuant
to Federal Rule of Civil Procedure (“Rule”) 15(c) to substitute Thrifty Payless,
Inc. d/b/a Rite Aid, a California Corporation, as the defendant in this action in the
place of Rite Aid Corporation, a Delaware Corporation;

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whether all of Rite Aid’s prior discovery responses, representations, and
stipulations would bind any newly named defendant as if it had originally
appeared as the 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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how discovery requests to Rite Aid and/or any newly named defendant would be
addressed.

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The Parties therefore submit this joint motion requesting this Court to find good cause and

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approve the below proposed schedule, as follows:

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Event

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Rite Aid Corporation’s production
of privilege logs relating to
California’s RFP Set No. 7
Rite Aid Corporation’s production
of documents responsive to
Relator’s RFP Set No. 2 and service
of amended written
responses/objection to Relator’s
RFP Set No. 2, with designation of
documents responsive to each RFP,
and verification

Current Deadline
[ECF Nos. 244 and 258]
N/A

Proposed Modified Date

N/A

Complete by January 10,
2020

N/A

Complete by January 31,

Complete by December 20,
2019

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Deposition(s) of Rite Aid 30(b)(6)

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

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witness(es) relating to Rite Aid’s
“improper defendant” defense2
Parties’ stipulation, if agreed upon,
to amend the named defendant 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
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

2020
File by December 13, 2019 File by February 28, 2020

File by January 2, 2020

File by April 3, 2020

File by February 10, 2020

File by May 1, 2020

File by February 24, 2020
TBD

File by May 15, 2020
TBD

March 27, 2020

August 7, 2020

May 15, 2020

October 2, 2020

June 26, 2020

November 13, 2020

July 31, 2020
December 18, 2020
December 4, 2020 at 10:00 May 28, 2021 at 10:00 A.M.
A.M. in Courtroom No. 3 in Courtroom No. 3

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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 and discovery efforts continue. ECF No. 188 at 3-4. The

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

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

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Dated: November 6, 2019

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/s/ Emmanuel R. Salazar
___________________________________
Emmanuel R. Salazar
Deputy Attorney General
2329 Gateway Oaks Drive, Suite 200

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Respectfully Submitted,
XAVIER BECERRA
Attorney General of the State of California

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The Parties understand that Rite Aid’s 30(b)(6) witness(es) relating to other relevant topics may
be the same 30(b)(6) witness(es) designated for the “improper defendant” defense. In such a
case, Rite Aid agrees the same 30(b)(6) witnesses on different date(s) may again be deposed for
topics other than the “improper defendant” defense.
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PARTIES’ AMND JOINT MOT TO EXT TIME TO
CONDUCT DISCOVERY AND M&C RE DEFT’S 11TH
AFFIRMATIVE DEFENSE
CASE NO. 2:12-CV-01699-KJM-EFB

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Sacramento, CA 95833-4252
Tel: [phone]; Fax: [phone]
Email: [e-mail]
Attorneys for Plaintiff-Intervenor
STATE OF CALIFORNIA

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Dated: November 6, 2019

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WATERS & KRAUS LLP
/s/ Wm. Paul Lawrence II (authorized on 11/6/2019)
__________________________________
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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Dated: November 6, 2019

MORGAN, LEWIS & BOCKIUS LLP
/s/ Benjamin P. Smith (authorized on 11/6/2019)
___________________________________
Benjamin P. Smith
Attorneys for Defendant
RITE AID CORPORATION

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

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ORDER

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

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Conduct Discovery and Meet and Confer re: Defendant’s 11th Affirmative Defense (Improper

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Defendant), finds good cause and ORDERS that the schedule for the Parties as follows:

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Event

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Rite Aid Corporation’s production
of privilege logs relating to
California’s RFP Set No. 7
Rite Aid Corporation’s production
of documents responsive to
Relator’s RFP Set No. 2 and service
of amended written
responses/objection to Relator’s
RFP Set No. 2, with designation of
documents responsive to each RFP,
and verification
Deposition(s) of Rite Aid 30(b)(6)
witness(es) relating to Rite Aid’s
“improper defendant” defense3
Parties’ stipulation, if agreed upon,
to amend the named defendant 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
Second Phase of Discovery
Completed

Current Deadline
[ECF Nos. 244 and 258]
N/A

Proposed Modified Date

N/A

Complete by January 10,
2020

N/A

Complete by January 31,
2020

Complete by December 20,
2019

File by December 13, 2019 File by February 28, 2020

File by January 2, 2020

File by April 3, 2020

File by February 10, 2020

File by May 1, 2020

File by February 24, 2020
TBD

File by May 15, 2020
TBD

March 27, 2020

August 7, 2020

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The Parties understand that Rite Aid’s 30(b)(6) witness(es) relating to other relevant topics may
be the same 30(b)(6) witness(es) designated for the “improper defendant” defense. In such a
case, Rite Aid agrees the same 30(b)(6) witnesses on different date(s) may again be deposed for
topics other than the “improper defendant” defense.
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PARTIES’ AMND JOINT MOT TO EXT TIME TO
CONDUCT DISCOVERY AND M&C RE DEFT’S 11TH
AFFIRMATIVE DEFENSE
CASE NO. 2:12-CV-01699-KJM-EFB

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

May 15, 2020

October 2, 2020

June 26, 2020

November 13, 2020

July 31, 2020
December 18, 2020
December 4, 2020 at 10:00 May 28, 2021 at 10:00 A.M.
A.M. in Courtroom No. 3 in Courtroom No. 3

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

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UNITED STATES DISTRICT JUDGE

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