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Order Denying Plaintiff's — Motion to Stay Judgment — Children's Health Defense — Science Feedback (Document 115)

Date
2021-09-03

Summary

An order filed August 30, 2021 as Document 115 in Children's Health Defense v. Facebook Inc., et al., Case No. 20-cv-05787-SI, in the U.S. District Court for the Northern District of California, denying the plaintiff's motion to stay judgment [Dkt. No. 111]. Judge Susan Illston vacates the September 3, 2021 hearing and denies the motion, which sought to stay the judgment of dismissal without prejudice as to defendant Science Feedback under Federal Rule of Civil Procedure 62(h), or alternatively an indicative ruling under Rule 62.1. The order recounts that the court granted motions to dismiss on June 29, 2021, entered judgment on June 30, 2021, and that the plaintiff then appealed. It concludes that the motion came too late because the notice of appeal divested the court of jurisdiction, and that an indicative ruling is not appropriate on the present record.

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Cite this document

“Order Denying Plaintiff's — Motion to Stay Judgment — Children's Health Defense — Science Feedback (Document 115).” Original at archive.org, dated 2021-09-03. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2021-09-03-plaintiff-v-facebook-inc-et-al/, SHA-256 6dc2afcdfad65b46190265be10b80c58373f19566ac37a7d571e4ccd5d773eca.

Full text

                                           Case 3:20-cv-05787-SI Document 115 Filed 08/30/21 Page 1 of 2




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                                   4                                   UNITED STATES DISTRICT COURT

                                   5                                  NORTHERN DISTRICT OF CALIFORNIA

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                                   7     CHILDREN’S HEALTH DEFENSE,                         Case No. 20-cv-05787-SI
                                   8                     Plaintiff,
                                                                                            ORDER DENYING PLAINTIFF’S
                                   9              v.                                        MOTION TO STAY JUDGMENT
                                  10     FACEBOOK INC., et al.,                             Re: Dkt. No. 111
                                  11                     Defendants.

                                  12


 United States District Court
                                  13           Plaintiff Children’s Health Defense (“CHD”) has filed a motion to stay the judgment as to

                                  14   defendant Science Feedback, or alternatively for an indicative ruling. The motion is scheduled for

                                  15   a hearing on September 3, 2021. Pursuant to Civil Local Rule 7-1(b), the Court determines that the



Northern District of California
                                  16   matter is suitable for resolution without oral argument and VACATES the hearing. For the reasons

                                  17   set forth below, the Court DENIES the motion.

                                  18           This case was filed on August 17, 2020. In an order filed June 29, 2021, the Court granted

                                  19   the motions to dismiss the second amended complaint filed by defendants Facebook, Mark

                                  20   Zuckerberg, and Politifact. The Court also dismissed without prejudice plaintiff’s claims against

                                  21   defendant Science Feedback, finding that the record reflected that Science Feedback had neither

                                  22   been served nor appeared in this case. On June 30, 2021, the Court entered judgment, and on July

                                  23   20, plaintiff filed a notice of appeal.

                                  24           On July 27, 2021, a week after it appealed, plaintiff filed the instant motion to stay the

                                  25   judgment of dismissal without prejudice as to defendant Science Feedback under Federal Rule of

                                  26   Civil Procedure 62(h), or alternatively for an indicative ruling under Federal Rule of Civil Procedure

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                                           Case 3:20-cv-05787-SI Document 115 Filed 08/30/21 Page 2 of 2




                                   1   62.1. CHD has submitted what it asserts is credible evidence1 of its diligence and expense

                                   2   constituting good cause to extend the time for foreign service of this French corporate defendant

                                   3   nunc pro tunc to June 24, 2021. CHD also seeks an order for equitable tolling of the statute of

                                   4   limitations for its claims against Science Feedback from August 17, 2020, when the original

                                   5   complaint was filed, until such time as a mandate issues from the Ninth Circuit Court of Appeals.

                                   6   In the alternative, CHD requests an indicative ruling from the Court “as to how it would rule on

                                   7   these issues should the Ninth Circuit remand for that limited purpose.” Mtn. at 15.

                                   8          The Court concludes that it cannot grant the relief requested by CHD because CHD’s motion

                                   9   is too late. CHD states that it received the documents related to service on July 15, prior to the date

                                  10   that CHD filed its notice of appeal. CHD should have requested relief from this Court before filing

                                  11   the notice of appeal. Once CHD filed a notice of appeal of the June 29 order and June 30 judgment,

                                  12   this Court was divested of jurisdiction “over those aspects of the case involved in the appeal.”


 United States District Court
                                  13   Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982). The appealed order and

                                  14   judgment address CHD’s claims against Science Feedback, and thus those matters are now before

                                  15   the Ninth Circuit. In addition, the Court concludes that the requested indicative ruling under Federal



Northern District of California
                                  16   Rule of Civil Procedure 62.1 is not appropriate because, inter alia, the Court cannot make findings

                                  17   about attempted service on Science Feedback based on the present record.

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                                  19          IT IS SO ORDERED.

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                                  21   Dated: August 30, 2021                        ______________________________________
                                                                                       SUSAN ILLSTON
                                  22                                                   United States District Judge
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                                                CHD states that on July 15, it received an “Attestation of Service” from the French Ministry
                                       of Justice, as well as related documents relating to service, showing that on June 24, 2021, “an
                                  28   officer of the French Ministry of the Interior, acting on CHD’s submission under the terms of the
                                       Hague Convention . . . attempted to effect service on Science Feedback.” Mtn. at 2.
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Original
archive.org
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