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United States ex rel. Schmuckley v. Rite Aid Corp.

United States District Court, E.D. California

July 8, 2019

UNITED STATES OF AMERICA, et al, ex rel. LOYD F. SCHMUCKLEY, JR., Plaintiffs,
v.
RITE AID CORPORATION, Defendant. STATE OF CALIFORNIA ex rel. LOYD F. SCHMUCKLEY, JR., Plaintiff,
v.
RITE AID CORPORATION, Defendant.

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

          MORGAN, LEWIS & BOCKIUS LLP (as authorized on 6/28/2019) Benjamin P. Smith Michael Q. Eagan, Jr. Attorneys for Defendant RITE AID CORPORATION

          PARTIES' JOINT MOTION TO EXTEND TIME FOR PARTIES TO MEET AND CONFER RE: DEFENDANT'S 11TH AFFIRMATIVE DEFENSE (IMPROPER DEFENDANT); ORDER RELATED TO ECF NO. 187, 188

         TO THE HONORABLE COURT:

         Plaintiff-Intervenor State of California ("California"), Qui Tarn 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 time for Parties to 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 [ECFNO. 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 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. 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. atl, n.2.

         On June 18, 2019, the Court, on its own motion, moved the hearing date of Rite Aid's motion challenging Plaintiffs' sampling methodology and design to July 12, 2019 and reset any remaining filing deadlines. ECF No. 219.

         After a June 26, 2019 conference call, considering that the Parties will need to prepare and file on July 5, 2019 their remaining motion papers and prepare for the hearing set for July 12, 2019, the Parties in good faith believe that more time is warranted to allow them to further meet and confer about Rite Aid's Eleventh Affirmative Defense (Improper Defendant). Issues that the parties will need to continue to discuss, and request more time to resolve, in connection with a potential stipulation include:

• 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;
• 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;
• 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 the deadline for the Parties to complete the above meet-and-confer process from July 15, 2019 to August 26, 2019. The Parties maintain their respective positions and reservations of rights as set forth in the Joint Statement while these discussions contine. ECF No. 188 at 3-4. The Parties also maintain that no Party may ...


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