Facebook's Opposition to Request for Judicial Notice — Children's Health Defense v. Facebook (Document 99)

Summary

Defendants Facebook, Inc. and Mark Zuckerberg oppose the plaintiff Children's Health Defense's request for judicial notice (Dkt. No. 97) and request for leave to file a statement of recent decision (Dkt. No. 98) in Case No. 3:20-cv-05787-SI. The opposition says the two submissions came almost one week after the Court took the pending motions to dismiss under submission, and calls the judicial notice request the fifth attempt to supplement or modify the allegations. It argues that virtually all the purported facts were available before the May 5, 2021 hearing. On the statement of recent decision, it says the cited authority involves compassionate release and is irrelevant. The signature block shows /s/ Sonal N. Mehta, dated May 12, 2021.

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CASE NO.: 3:20-CV-05787-SI

FACEBOOK’S OPP. TO REQUEST FOR
JUDICIAL NOTICE

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SONAL N. MEHTA (SBN 222086)
Sonal.Mehta@wilmerhale.com
WILMER CUTLER PICKERING
 HALE AND DORR LLP
2600 El Camino Real, Suite 400
Palo Alto, California 94306
Telephone: (650) 858-6000
Facsimile: (650) 858-6100
ARI HOLTZBLATT (pro hac vice)
Ari.Holtzblatt@wilmerhale.com
MOLLY M. JENNINGS (pro hac vice)
Molly.Jennings@wilmerhale.com
ALLISON SCHULTZ (pro hac vice)
Allison.Schultz@wilmerhale.com
WILMER CUTLER PICKERING
 HALE AND DORR LLP
1875 Pennsylvania Ave, NW
Washington, DC 20006
Telephone: (202) 663-6000
Facsimile: (202) 663-6363
Attorneys for Defendants
FACEBOOK, INC. and
MARK ZUCKERBERG

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
CHILDREN’S HEALTH DEFENSE,
Plaintiff,
v.
FACEBOOK, INC., ET AL.,
Defendants.

Case No.  3:20-cv-05787-SI
DEFENDANTS FACEBOOK INC.’S
AND MARK ZUCKERBERG’S
OPPOSITION TO PLAINTIFF’S
REQUEST FOR JUDICIAL NOTICE
(DKT. NO. 97) AND REQUEST FOR
LEAVE TO FILE STATEMENT OF
RECENT DECISION (DKT. NO. 98)
Hon. Susan Illston
Case 3:20-cv-05787-SI   Document 99   Filed 05/12/21   Page 1 of 5

CASE NO.: 3:20-CV-05787-SI
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Almost one week after the Court took the pending motions to dismiss under submission,
Children’s Health Defense (“CHD”) makes two unauthorized submissions to the Court: a request
for judicial notice (Dkt. No. 97) and a motion for leave to file a statement of recent decision (Dkt.
No. 98).  CHD’s submissions are but the latest in a string of shifting allegations and dilatory tactics
intended to avoid or delay adjudication of the fatal defects in CHD’s case.  Both submissions should
be rejected for what they are: thinly disguised efforts to improperly supplement CHD’s argument
after briefing is closed and the Court has already heard extended argument on the pending motions.
I.
CHD’s Request for Judicial Notice Should Be Denied

First, although CHD’s submission is styled as a request for judicial notice, in substance it
represents CHD’s fifth attempt to supplement or modify its allegations; this latest effort is especially
brazen given that a too-late motion to supplement is already pending.1  In all events, the submission
does not seek judicial notice of any material that would properly be noticeable by the Court at this
stage.  Instead, it represents an obvious effort to offer unauthorized supplemental argument in
support of CHD’s theory of government coercion—a theory that was fully ventilated at the May 5,
2021 hearing.  This “ill-disguised attempt to recast” CHD’s claims and make additional
unauthorized legal argument is not “a proper subject for judicial notice,” Von Staich v. Valenzuela,
2017 WL 10636887, at *20 (C.D. Cal. Aug. 30, 2017), and must be denied.

Second, virtually all the purported facts to be noticed were available to CHD well in advance
of the May 5, 2021 hearing.  Most of the events or statements CHD identifies occurred before CHD’s
latest attempt to supplement its allegations in March of 2021; indeed, many of the “new” purported
facts occurred before the original complaint in this case was even filed in August of 2020.  Now,
nearly a week after a hearing on Defendants’ motion to dismiss, and after no fewer than four rounds
of pleading, CHD once again attempts to inject yet more allegations into this case.  This is, at best,
confirmation of undue delay on the part of CHD.  But given CHD’s strategy of belatedly amending

1 As Defendants explained in the context of that motion, see Dkt. No. 82, the pattern and timing of
CHD’s serial supplements and motions is troubling to say the least.  CHD’s latest submissions only
exacerbate the concern that CHD is unjustifiably prolonging and multiplying these proceedings,
thereby imposing unreasonable burden and expense not only on Defendants but also on the Court.

Case 3:20-cv-05787-SI   Document 99   Filed 05/12/21   Page 2 of 5

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or “supplementing” its pleadings throughout this action, CHD’s latest submission is better
understood as further evidence of CHD’s bad faith efforts to continually move the target on its
pleadings to avoid resolution of Defendants’ motion to dismiss.

Third, the statements and events CHD identifies are not material in any case.  CHD’s new-
found reliance on Hammerhead Enterprises, Inc. v. Brezenoff, 707 F.2d 33 (2d Cir. 1983),2 is
misplaced because, as Defendants have argued (Mot. 8-10), CHD’s joint-action allegations fail to
establish any federal involvement in the specific conduct alleged to have violated CHD’s rights.
None of the newly identified statements—or anything in CHD’s pleadings or proposed
supplement—affect that conclusion.  If anything, CHD’s belated filing confirms why dismissal with
prejudice is warranted here.  In Hammerhead, the Second Circuit explained that a First Amendment
claim could not be stated because the government actor in question did not “have the power to
impose sanctions” on private actors.  Hammerhead, 707 F.2d at 39.  The same is true here, as a few
individual lawmakers do not have the power to change the law.  And, notably, although it found it
need not address them because it found no First Amendment violation, the Second Circuit
recognized precisely “the competing First Amendment considerations of [the defendant’s] own right
to speak” that Defendants have raised here and that independently foreclose CHD’s claims.  See id.
n.6.
II.
CHD’s Request For Leave To File A Statement of Recent Decision Should Be Denied
CHD’s request for leave to file a statement of recent decision should be denied because it is
procedurally improper and substantively irrelevant.  Civil Local Rule 7-3(d)(2) states that counsel
may bring supplemental authority to the Court’s attention “[b]efore the noticed hearing date” and
only if it does so “without argument.”  CHD’s submission fails on both counts.  In any event, as the
Court knows well, the cited authority involves compassionate release, and is irrelevant to any of the
legal issues or factual allegations before the Court.

2 CHD raised Hammerhead for the first time at argument but it was not briefed by the parties.
Case 3:20-cv-05787-SI   Document 99   Filed 05/12/21   Page 3 of 5

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Dated: May 12, 2021

WILMER CUTLER PICKERING, HALE AND
DORR LLP

By:
/s/ Sonal N. Mehta

SONAL N. MEHTA

Attorney for Defendants
Facebook, Inc. and Mark Zuckerberg
Case 3:20-cv-05787-SI   Document 99   Filed 05/12/21   Page 4 of 5

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CASE NO.: 3:20-CV-05787-SI

FACEBOOK’S OPP. TO REQUEST FOR JUDICIAL
NOTICE

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CERTIFICATE OF SERVICE
I hereby certify that on May 12, 2021, I electronically filed the above document with the
Clerk of the Court using CM/ECF which will send electronic notification of such filing to all
registered counsel.

Dated: May 12, 2021
By:
/s/ Sonal N. Mehta

Sonal N. Mehta
Case 3:20-cv-05787-SI   Document 99   Filed 05/12/21   Page 5 of 5

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