Schmuckley et al v. Rite Aid Corporation

Filing 299

ORDER signed by Chief District Judge Kimberly J. Mueller on 3/24/2020 MODIFYING the scheduling order as follows: Motion to Amend the Pleadings due by 6/12/2020. Opposition due by 7/10/2020. Reply due by 7/24/2020. (Coll, A)

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
11

IN THE UNITED STATES DISTRICT COURT

12

FOR THE EASTERN DISTRICT OF CALIFORNIA

13
14

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

15
Plaintiffs,

2:12-CV-1699 KJM EFB
PARTIES’ JOINT MOTION TO AMEND
SCHEDULING ORDER; ORDER

16
v.

Related to ECF No. 260

17
18

RITE AID CORPORATION,

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 AMEND SCHEDULING ORDER; ORDER

1

PARTIES’ JOINT MOTION TO AMEND SCHEDULING ORDER

2

TO THE HONORABLE COURT:

3

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

4

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

5

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

6

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

7

scheduling order. Specifically, the Parties request to move by approximately two months the

8

filing dates relating to Plaintiffs’ motion to amend the pleadings. The motion, if granted, will

9

allow the Parties more time to complete discovery on documents Plaintiffs requested, i.e.,

10

California’s Request for Production of Documents (“RPD”), Set No. 7 and Relator’s RPD Set

11

Nos. 2 and 3, including the filing and hearing of any pending and potential discovery motions.

12

Moreover, the Parties request the additional time due to the Parties’ current constraints arising

13

out of the COVID-19 virus.

14

On January 25, 2019, the Court ordered the Parties to submit a joint statement concerning

15

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

16

2019, the Parties filed a joint statement in which they proposed to the Court that the Plaintiffs

17

should have until July 15, 2019 to either stipulate with Rite Aid for an agreed-upon amendment

18

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

19

their pleadings to do so. ECF No. 188 at 1.

20

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

21

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

22

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

23

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

24

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

25

good cause, granted the motion. ECF No. 227. Subsequently, the Parties continued to meet and

26

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

27

Defendant).

28
1
PARTIES’ JOINT MOTION TO AMEND SCHEDULING ORDER; ORDER

1

On July 19, 2019, California propounded Request for Production of Documents, Set No.

2

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

3

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

4

On November 5, 2019, in response to a motion to compel, the Court ordered Rite Aid to

5

provide a supplemental response and produce additional documents by November 25, 2019

6

responsive to various document requests, including California’s RPD, Set No. 7. ECF No. 258.

7

On November 8, 2019, the Court granted the Parties’ joint motion to extend time to

8

conduct discovery and meet and confer regarding Defendant’s Eleventh Affirmative Defense

9

(Improper Defendant). ECF No. 259. The Court ordered, among other things, that Rite Aid

10

produce privilege logs relating to California’s RPD, Set No. 7 by December 20, 2019, and that

11

the Parties complete the depositions of Rite Aid 30(b)(6) witnesses relating to Rite Aid’s

12

“improper defendant” defense by January 31, 2020. The Parties thereafter met and conferred on

13

the scheduling of depositions of Rite Aid’s 30(b)(6) witnesses, which they scheduled to take

14

place in Pennsylvania in January and February 2020.

15

On December 12, 2019, Relator propounded his RPD Set No. 3, seeking certain

16

additional financial documents from Rite Aid. Rite Aid timely served its responses to Relator’s

17

RFP Set No. 3 on January 13, 2020.

18

On December 19, 2019, the Court issued an order granting in part and denying in part

19

California’s motion for sanctions arising out of Rite Aid’s responses to California’s RPD Set No.

20

7. ECF No. 273. The Court ordered Rite Aid to produce by January 10, 2020 unredacted copies

21

of all financial statements previously produced in response to California’s RPD Nos. 30 and 31,

22

and to serve a supplemental discovery response.

23

On December 20, 2019, Rite Aid timely produced a privilege log pursuant to the Court’s

24

above-described November 8, 2019 order. Rite Aid also made a related, supplemental document

25

production at that time.

26

On January 8, 2020, California filed a motion for sanctions against Rite Aid for purported

27

violations of court orders ECF No. 258 and 260. After the February 26, 2020 hearing on this

28

motion, the Court ordered Rite Aid to submit a declaration supporting Rite Aid’s claims of
2
PARTIES’ JOINT MOTION TO AMEND SCHEDULING ORDER; ORDER

1

privilege by March 18, 2020, and for Plaintiffs to submit a response by April 8, 2020. ECF No.

2

290.

3

On January 10, 2020, pursuant to the Court’s December 19, 2109 order (ECF No. 273),

4

Rite Aid produced additional documents in response to California’s RPD Set No. 7, Relator’s

5

RPD Set No. 2, as well as documents responsive to Relator’s RPD Set No. 3.

6

On January 21, 2020, the Court granted the Parties’ joint motion to amend the scheduling

7

order by striking the deadline to complete the deposition of Rite Aid’s 30(b)(6) witness relating

8

to its “improper defendant” defense. ECF No. 282.

9

On March 13, 2020, Plaintiffs deposed Rite Aid’s Director of Treasury Services.

10

Plaintiffs expect to request additional discovery from Rite Aid based on that deposition.

11
12
13

On March 16, 2020, the Court moved Rite Aid’s deadline to submit documents for in
camera review and a supporting declaration to April 8, 2020. ECF No. 295.
On the same date, the Parties agreed to extend the upcoming deadlines relating to the

14

motion to amend pleadings, due to the above-described ongoing discovery efforts. With respect

15

to constraints arising out of the COVID-19 virus, the California Attorney General’s Office is

16

currently implementing workplace restrictions while responding to mission-critical tasks. Rite

17

Aid is in the midst of work with the federal government regarding COVID-19 testing centers,

18

and Rite Aid’s lead counsel is located in San Francisco and subject to workplace restrictions

19

resulting from the shelter-in-place orders announced for the Bay Area on March 16, 2020.

20

Based on the above, the Parties believe that more time is needed to complete discovery

21

relating to the issues surrounding Rite Aid’s “improper defendant” defense, and resolution of any

22

pending and further discovery disputes. Moreover, more time is needed to allow the Parties to

23

manage current constraints arising out of the COVID-19 virus.

24
25
26
27

Accordingly, the Parties jointly submit that good cause exists to amend the scheduling
order, ECF No. 260, as follows:
Event
Plaintiffs’ motion to amend
the pleadings

Current Deadline
File by April 3, 2020

Proposed Modified Date
File by June 12, 2020

28
3
PARTIES’ JOINT MOTION TO AMEND SCHEDULING ORDER; ORDER

1
2
3
4
5
6
7

Defendant’s opposition to
motion to amend
Plaintiffs’ reply re motion to
amend
Hearing on Plaintiffs’ motion
to amend the pleadings

File by May 1, 2020

File by July 10, 2020

File by May 15, 2020

File by July 24, 2020

TBD

TBD

The Parties are meeting and conferring regarding moving other dates in the scheduling
order, ECF No. 260. The Parties will apprise the Court about these other dates.
The Parties maintain their respective positions and reservations of rights as set forth in

8

the Joint Statement while these discussions and discovery efforts continue. ECF No. 188 at 3-4.

9

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

10

connection with a motion to amend the pleadings.

11

Respectfully submitted,

12
13

Dated: 3/17/2020

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

14
15
16
17
18
19
20
21
22
23
24
25

Dated: 3/16/2020

WATERS & KRAUS, LLP
By /s/ Wm. Paul Lawrence, II (authorized on
3/16/2020)
Wm. Paul Lawrence, II (admitted 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.

26
27
28
4
PARTIES’ JOINT MOTION TO AMEND SCHEDULING ORDER; ORDER

1
2
3
4
5
6
7

Dated: 3/17/2020

MORGAN, LEWIS & BOCKIUS LLP
By /s/ Kevin M. Papay (authorized on 3/17/2020)
Benjamin P. Smith
Kevin M. Papay
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
5
PARTIES’ JOINT MOTION TO AMEND SCHEDULING ORDER; ORDER

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

ORDER
The Court, having considered the Parties’ Joint Motion to Amend the Scheduling Order,
finds good cause and ORDERS that the schedule for the Parties as follows:
Event
Plaintiffs’ motion to amend
the pleadings
Defendant’s opposition to
motion to amend
Plaintiffs’ reply re motion to
amend
Hearing on Plaintiffs’ motion
to amend the pleadings

Current Deadline
File by April 3, 2020

Proposed Modified Date
File by June 12, 2020

File by May 1, 2020

File by July 10, 2020

File by May 15, 2020

File by July 24, 2020

TBD

TBD

All other dates in the currently effective scheduling order, ECF No. 260, remain the same.
IT IS SO ORDERED.
DATED: March 24, 2020.

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6
PARTIES’ JOINT MOTION TO AMEND SCHEDULING ORDER; ORDER