1 Plaintiff’s [Proposed] Order Staying Judgment

Summary

Plaintiff Children's Health Defense's [Proposed] Order Granting Motion to Stay Judgment as to Defendant Science Feedback and for Equitable Tolling in Children's Health Defense v. Facebook, Inc., et al., Case No. 3:20-cv-05787-SI, U.S. District Court for the Northern District of California, filed August 12, 2021 as Document 114. It recites that on June 29 and 30, 2021 the court dismissed the claims against Facebook, Mark Zuckerberg and The Poynter Institute with prejudice and against Science Feedback, a French company that had not appeared, without prejudice, and that the plaintiff appealed to the Ninth Circuit on July 20, 2021. The proposed order would stay the judgment as to Science Feedback and toll the statute of limitations from August 17, 2020 until the Ninth Circuit's mandate issues. It leaves a signature line for United States District Judge Susan Illston, undated and unsigned.

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Plaintiff’s [Proposed] Order Staying Judgment

as to Science Feedback and for Equitable Tolling

CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI
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ROGER I. TEICH
California State Bar No. 147076
290 Nevada Street
San Francisco, CA 94110
Telephone:  (415) 948-0045
E-Mail Address:  rteich@juno.com

ROBERT F. KENNEDY, JR.
MARY HOLLAND
Children’s Health Defense
1227 North Peachtree Parkway, Suite 202
Peachtree City, GA 30269
Telephone:  (917) 743-3868
E-Mail Address:  mary.holland@childrenshealthdefense.org

Attorneys for Plaintiff
CHILDREN’S HEALTH DEFENSE

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

PLAINTIFF’S [PROPOSED] ORDER
GRANTING MOTION TO STAY
JUDGMENT AS TO DEFENDANT
SCIENCE FEEDBACK AND FOR
EQUITABLE TOLLING

On June 29 and 30, 2021, this Court issued its order and judgment of dismissal with prejudice
as to defendants Facebook, Inc., Mark Zuckerberg, and The Poynter Institute for Media Studies, Inc.
(“Poynter”), and dismissal without prejudice as to defendant Science Feedback. (Dkts. ##107, 108.) On
July 20, 2021, plaintiff Children’s Health Defense (“CHD”) filed its notice of appeal to the United
States Court of Appeals for the Ninth Circuit (Dkt. #109), since docketed as Case No. 21-16210 (Dkt.
#110).
On July 27, 2021, CHD filed the instant motion to stay the judgment of dismissal without
prejudice as to defendant Science Feedback under Federal Rule of Civil Procedure 62(h). (Dkt. #111.)
CHD proffers credible evidence of its diligence and expense constituting good cause to extend the time
for foreign service of this French corporate defendant nunc pro tunc to June 24, 2021 under Rules
Case 3:20-cv-05787-SI   Document 114   Filed 08/12/21   Page 1 of 3

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Plaintiff’s [Proposed] Order Staying Judgment

as to Science Feedback and for Equitable Tolling

CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI
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4(f)(1), 4(h)(2), and 6(b)(1)(B)). (Dkts. #111-1, 111-2, 111-3.) On that same basis, CHD also seeks an
order for equitable tolling of the statute of limitations for its claims against Science Feedback from
August 17, 2020, when the original complaint was filed, until such time as a mandate issues from the
Ninth Circuit Court of Appeals. The motion is unopposed by Facebook, Zuckerberg, and Poynter, all of
whom have appeared in this action. As noted in the Court’s June 29, 2021 Order, Science Feedback has
not appeared in this action. (Dkt. #107 at 45).

Courts consider the following factors when deciding whether to grant a motion to stay
enforcement of a judgment: “(1) whether the stay applicant has made a strong showing that he is likely
to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3)
whether issuance of the stay will substantially injure the other parties interested in the proceeding; and
(4) where the public interest lies.” Hilton v. Braunskill, 481 U.S. 770, 776 (1987). A court may look to
general equitable principles when fashioning a stay of enforcement. AmerisourceBergen, 465 F.3d at
956; see Office Depot, Inc. v. Zuccarini, 2007 U.S. Dist. LEXIS 86615 (N.D. Cal. 2007) (Illston, J.)
“When harm to applicant is great enough, a court will not require ‘a strong showing’ that applicant is
‘likely to succeed on the merits.’” Standard Havens Prods. v. Gencor Indus., 897 F.2d 511, 512 (Fed.
Cir. 1990) (citing Hilton, 481 U.S. at 776-77 [“the traditional stay factors contemplate individualized
judgments in each case, the formula cannot be reduced to a set of rigid rules.”].)
Plaintiff has made a sufficient showing that it will be irreparably harmed by time-bar of one or
more of its claims against Science Feedback absent a stay, despite its due diligence in attempting
service under the Hague Convention, and that the issuance of a stay will not substantially injure the
other parties interested in the proceeding. Equitable tolling is warranted for the event that this Court
ultimately determines that CHD’s timely prior service attempts were not effective.
Therefore, and for GOOD CAUSE shown, the Court finds as follows:
(1) Plaintiff’s motion for a stay of the judgment as to Science Feedback is GRANTED;
(2) Plaintiff’s request for equitable tolling of the statute of limitations for its claims against
Science Feedback is GRANTED nunc pro tunc from August 17, 2020 until such time as a
mandate issues from the Ninth Circuit.
(3) Within 10-days of the issuance of such mandate, in the event that this Court’s order and
Case 3:20-cv-05787-SI   Document 114   Filed 08/12/21   Page 2 of 3

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Plaintiff’s [Proposed] Order Staying Judgment

as to Science Feedback and for Equitable Tolling

CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI
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judgment are upheld, Plaintiff shall notify this Court that the stay should be lifted and
judgment entered as to Science Feedback with prejudice, or in the event of a reversal of this
Court’s order and judgment, Plaintiff shall submit a 5-page brief explaining why its June 24,
2021 service was effective under Rule 4(f)(1), 4(h)(2), or substituted service should be
permitted on the email address now on file with for Mr. Emmanuel Vincent, President of
Science Feedback, or new service should be permitted within a specified time by an
alternate method.
IT IS SO ORDERED.

Dated:

_______________________________

SUSAN ILLSTON

United States District Judge

Case 3:20-cv-05787-SI   Document 114   Filed 08/12/21   Page 3 of 3

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