PARTIES' JOINT MOTION TO EXTEND TIME FOR PARTIES TO MEET AND CONFER RE: DEFENDANT'S 11TH AFFIRMATIVE DEFENSE (IMPROPER DEFENDANT) AND JOINT MOTION TO AMEND SCHEDULING ORDER; ORDER Related to ECF No. 187, 188, 239, 241, 242

KIMBERLY J. MUELLER, District Judge.

PARTIES' JOINT MOT TO EXT TIME TO M&C

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 the time for the Parties to 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.

Thereafter, the parties continued to meet and confer in an attempt to come to an agreement on the identity of the correct defendant for this case without further discovery or law and motion practice, and exchanged a draft and final declaration of a Rite Aid Hdqtrs. Corp. 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.

After filing their joint motion on August 20, 2019, the Parties continued to meet and confer regarding the issues involved with Rite Aid's Eleventh Affirmative Defense (Improper Defendant), including California's issuance of related document requests and a 30(b)(6) deposition notice. To date, the parties have been unable to reach an agreement, and Plaintiffs seek discovery from Defendant. Additional meet and confer efforts are ongoing regarding:

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 submit that good cause exists to extend deadlines for the Parties to complete the above meet-and-confer process, as follows:

The Parties maintain their respective positions and reservations of rights as set forth in the Joint Statement while these discussions continue. ECF No. 188 at 3-4. The Parties also maintain that no Party may claim prejudice based on the extended discussions in connection with a motion to amend the pleadings under Rule 15(c).

Further, in light of the above, the Parties jointly move the Court to amend its prior scheduling order, ECF No. 239, by moving the current dates by 5 weeks to accommodate the proposed changes above, as follows:

ORDER

The Court, having considered the Parties' Joint Motion to Extend Time for Parties to Meet and Confer re: Defendant's 11th Affirmative Defense (Improper Defendant) and Joint Motion to Amend Scheduling Order, finds good cause and ORDERS that the schedule for the Parties as follows:

IT IS SO ORDERED.