United States District Court, E.D. California
UNITED STATES OF AMERICA, et al, ex rel. LOYD F. SCHMUCKLEY, JR., Plaintiffs,
RITE AID CORPORATION, Defendant. STATE OF CALIFORNIA ex rel. LOYD F. SCHMUCKLEY, JR., Plaintiff,
RITE AID CORPORATION, Defendant.
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,
THE HONORABLE COURT:
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
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.
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.
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.
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
• 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.
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 ...