Children's Health Defense v. Facebook Inc.

Opinion

1 2 3 6 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 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 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 27 1 62.1. CHD has submitted what it asserts is credible evidence! 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.” 5 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 3 15 the Ninth Circuit. In addition, the Court concludes that the requested indicative ruling under Federal 16 || Rule of Civil Procedure 62.1 is not appropriate because, inter alia, the Court cannot make findings 3 17 about attempted service on Science Feedback based on the present record. 18 Guan Mle 21 Dated: August 30, 2021 SUSAN ILLSTON 22 United States District Judge 23 24 25 26 07 ' 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 2g || 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.