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United States v. Rite Aid Corp.

United States District Court, E.D. California

November 6, 2019

UNITED STATES OF AMERICA and the STATES OF CALIFORNIA, et al., ex rel. LOYD F. SCHMUCKLEY, JR., Plaintiffs,
v.
RITE AID CORPORATION, Defendant. STATE OF CALIFORNIA, ex rel . LOYD F. SCHMUCKLEY, JR., Plaintiffs,
v.
RITE AID CORPORATION, Defendant. Event Current Deadline [ECF Nos. 244 and 258] Proposed Modified Date Event Current Deadline [ECF Nos. 244 and 258] Proposed Modified Date

          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 Attorneys for Plaintiff-Intervenor STATE OF CALIFORNIA

          WATERS & KRAUS LLP Wm. Paul Lawrence II (Pro Hac Vice) Washington D.C. Metro Office Attorneys for Qui Tam Plaintiff LOYD F. SCHMUCKLEY, JR.

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

          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

         PARTIES' AMENDED JOINT MOTION TO EXTEND TIME FOR PARTIES TO CONDUCT DISCOVERY AND MEET AND CONFER RE: DEFENDANT'S 11TH AFFIRMATIVE DEFENSE (IMPROPER DEFENDANT)

         TO THE HONORABLE COURT:

         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 time for Parties to conduct discovery and 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]

         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. at 1, n.2.

         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 jointly moved for an order allowing Plaintiffs until August 26, 2019 to either stipulate with Defendant for an agreed-upon amendment to correct the naming of Defendant in this matter, or to otherwise seek leave of the Court to amend their pleadings. ECF No. 224. The Court, finding good cause, granted the motion. ECF No. 227.

         In July 2019, California propounded Request for Production of Documents, Set No. 7, and Relator propounded Request for Production of Documents, Set No. 2, both of which seek documents relevant to Rite Aid's purported “improper defendant” defense.

         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 until October 18, 2019 to either stipulate with Defendant for an agreed-upon amendment to correct the naming of Defendant in this matter, or to otherwise seek leave of the Court to amend their pleadings. ECF No. 241. This Court granted the motion on August 26, 2019. ECF No. 242.

         The Parties continued to meet and confer regarding the issues involved with Rite Aid's Eleventh Affirmative Defense (Improper Defendant), including Plaintiffs' pending document requests and California's 30(b)(6) deposition notice.

         On September 20, 2019, due to the ongoing meet and confer and discovery efforts, the recent departure of Michael Q. Eagan from Morgan Lewis, and the involvement of Benjamin Smith in a Delaware Chancery Court trial in September 2019, the Parties jointly moved to extend deadlines for the Parties to ...


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