Case 3:19-md-02913-WHO Document 921 Filed 08/27/20 Page 1 of 14
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
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`IN RE JUUL LABS, INC., MARKETING,
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`Case No. 3:19-md-02913-WHO
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`SALES PRACTICES, AND PRODUCTS
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` LIABILITY LITIGATION
` Honorable William H. Orrick
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`This Document Relates to:
`Lucas Lawless
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`PLAINTIFF LUCAS LAWLESS’
`RESPONSE IN OPPOSITION TO
`DEFENDANT JLI’S MOTION TO
`DISMISS WITHOUT PREJUDICE FOR
`FAILURE TO SUBMIT DISCOVERY
`REQUIRED BY CASE MANAGEMENT
`ORDER NO. 8
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`Plaintiff Lucas Lawless, by and through undersigned counsel, states as follows in response
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`and opposition to Defendant JUUL Labs, Inc.’s (“JLI”) Motion to Dismiss Without Prejudice for
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`Failure to Submit Discovery Required by Case Management Order No. 8.
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`I.
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`UBACKGROUND
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`Plaintiff Lucas Lawless is an 18-year-old living in Whitewater, Montana. He started using
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`JUUL in 2019 at just 17 years old. As a result of Defendants’ conduct, he suffers nicotine addiction,
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`mental health and behavioral issues, anxiety, and shortness of breath. These conditions started when
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`he was a minor and continue into adulthood. Mr. Lawless’ Short-Form Complaint and Demand for
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`Jury Trial was filed on April 13, 2020. Mr. Lawless’ complaint was entered on the MDL 2913
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`Case 3:19-md-02913-WHO Document 921 Filed 08/27/20 Page 2 of 14
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`docket on April 13, 2020. Pursuant to Case Management Order (“CMO”) No. 8, his Plaintiff Fact
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`Sheet (“PFS”) was due 60 days after his case was docketed, on June 12, 2020. On July 13, 2020,
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`Defendant JLI served Plaintiff with a Notice of Overdue Discovery and subsequently filed its
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`motion to dismiss on August 13, 2020. From April 16, 2020 to the present, Plaintiff Counsel has
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`diligently but unsuccessfully attempted to communicate with Mr. Lawless to facilitate completion
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`of a PFS for his case. For the reasons set forth below, Plaintiff requests that the Court deny
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`Defendant JLI’s motion to dismiss and grant Plaintiff additional time to complete and serve a PFS.
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`II.
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`UARGUMENT
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` Dismissal is a harsh penalty that should be imposed only in extreme circumstances, which
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`are not present in this case. As set forth below, each factor that the Court must weigh to determine if
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`dismissal is appropriate weighs in favor of denying Defendant JLI’s Motion to Dismiss and grating
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`Plaintiff more time to comply with CMO 8. There is no indication or assertion that Plaintiff or
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`Plaintiff’s counsel has acted in bad faith or that Defendant JLI has been prejudiced by Plaintiff’s
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`delay in submitting a PFS. Rather, Lucas Lawless – like hundreds of other plaintiffs in this litigation
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`– acquired a severe addiction to nicotine at a very young age through use of JUUL e-cigarette
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`products. As a direct result of Defendants’ tortious conduct, Plaintiff has suffered mental and
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`physical changes to his brain that impact how he thinks, acts, and functions. Now, in seeking justice
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`for his injuries, he has been asked to provide intimate details through a PFS about matters teenagers
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`generally prefer to keep private. For a normal teenager, this would be challenging; for a teenager
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`whose brain is ravaged with addiction, this is a monumental task. Furthermore, all of this is taking
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`place during an unprecedented global pandemic. Plaintiff’s counsel understands that completion of
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`a PFS is a necessary and important part of maintaining a claim in any MDL litigation. However, the
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`unique circumstances present justify allowing Plaintiff additional time to comply with CMO 8, so
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`his case can be decided on the merits rather than on procedural grounds. Defendants would not be
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`prejudiced if the Court grants an extension for plaintiff to submit a PFS.
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`Case 3:19-md-02913-WHO Document 921 Filed 08/27/20 Page 3 of 14
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`A.
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`The factors governing whether dismissal is appropriate weigh in favor of
`denying Defendants Motion to Dismiss and granting additional time to
`comply with CMO 8.
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`When deciding whether to dismiss a case for failure to comply with a court order, courts
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`must weigh the following factors: “(1) the public's interest in expeditious resolution of litigation; (2)
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`the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public
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`policy favoring disposition of cases on their merits; and (5) the availability of less drastic
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`sanctions.” In re Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir.
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`2006) (internal quotation marks omitted) (quoting Malone v. U.S. Postal Serv., 833 F.2d 128, 130
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`(9th Cir.1987)). “Dismissal is a harsh penalty and is to be imposed only in extreme circumstances.”
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`Id. Courts are “guided by the same dismissal factors in complex as well as ordinary cases.” Id. at
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`1229.
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`Under the second factor, the court’s need to manage its docket, a delay in proceedings is
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`only “so egregious as to favor dismissal” where it “bring[s] cases to a complete halt or allow[s]
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`plaintiffs to control the pace of the docket rather than the court.” Al Bahr Shriners v. United States
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`Bureau of Land Mgmt., 2016 WL 11265905, at *1–4 (S.D. Cal. Dec. 15, 2016) (citing Yourish v.
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`California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). For the third factor, a defendant only
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`suffers prejudice “if the plaintiff’s actions impair the defendant’s ability to go to trial or threaten to
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`interfere with the rightful decision of the case. . . . Delay alone has been held to be insufficient
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`prejudice.” Adriana Int'l Corp. v. Thoeren, 913 F.2d 1406, 1412 (9th Cir. 1990). The fourth factor,
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`“the public policy favoring disposition of cases on their merits[,] strongly counsels against
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`dismissal.” Id. Furthermore, “The district court abuses its discretion if it imposes a sanction of
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`dismissal without first considering the impact of the sanction and the adequacy of less drastic
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`sanctions.” Id. Also, “for the prior implementation of a lesser sanction to be a persuasive factor, it
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`must have occurred after the plaintiff's violation of a court order.” Id. Finally, “Dismissal is … the
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`most severe of sanctions that the Court can impose, reserved for 'flagrant cases' of bad faith and
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`Case 3:19-md-02913-WHO Document 921 Filed 08/27/20 Page 4 of 14
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`'callous disregard' for the Court's authority, and, therefore, the Court must determine if dismissal is
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`warranted.” Green v. Rubenstien, 2009 U.S. Dist. LEXIS 74036, *4 (S.D. W. Va. Aug. 19, 2009)
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`(citing Stevens v. Federated Mut. Ins. Co., 2006 U.S. Dist. LEXIS 51001, 2006 WL 2079503
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`(N.D.W.Va. July 25, 2006) (internal citations omitted)).
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`Motions to dismiss based on a plaintiff’s failure to serve a PFS or similar document in the
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`context of an MDL are routinely rejected by courts in favor of a less drastic sanction, such as
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`granting the plaintiff an extension under threat of dismissal upon the new deadline. E.g., In re Am.
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`Med. Sys., Inc., Pelvic Repair Sys. Prod. Liab. Litig., 2018 WL 2985999, at *1–3 (S.D.W. Va. June
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`13, 2018); Al Bahr Shriners, 2016 WL 11265905, at *1–4; In re Gen. Motors LLC Ignition Switch
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`Litig., 2019 WL 3302606, at *2–4 (S.D.N.Y. July 23, 2019) (denying defendant’s motion to dismiss
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`for failure to serve a substantially completed PFS before the deadline and imposing as a sanction
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`“one final opportunity” to serve the PFS within three weeks); In re Ethicon, Inc., Pelvic Repair Sys.
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`Prod. Liab. Litig., 2016 WL 1316637, at *2–3 (S.D.W. Va. Apr. 4, 2016).
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`In MDL No. 2325, a product liability MDL with over 500 filed cases that involved
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`transvaginal surgical mesh, motions to dismiss based on failure to serve a PFS were routinely
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`denied in favor of an extension. Using nearly identical opinions, the United States District Court for
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`the Southern District of West Virginia, Charleston Division, gave approximately 250P0F
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`1
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`P plaintiffs an
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`extension on the deadline to serve a PFS as the appropriate sanction under the principles discussed
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`above. See e.g., In re Am. Med. Sys., Inc., 2018 WL 2985999, at *1–3; In re Am. Med. Sys., Inc.,
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`Pelvic Repair Sys. Prod. Liab. Litig., 2018 WL 2981103, at *3 (S.D.W. Va. June 13, 2018); In re C.
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`R. Bard, Inc. Pelvic Repair Sys. Prod. Liab. Litig., 2017 WL 3188449, at *1 (S.D.W. Va. July 26,
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`2017). Generally, the extension was for 30 days from the date of the opinion, but many plaintiffs’
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`PFS were already 90 days or more overdue. See e.g., In re Am. Med. Sys., Inc., No. 2018 WL
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`1 This estimate was determined using a filtered search on Westlaw and viewing results generally,
`but without individually examining each opinion in full.
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`Case 3:19-md-02913-WHO Document 921 Filed 08/27/20 Page 5 of 14
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`2985999, at *1. In these 250 mirroring opinions, the court reasoned that (despite finding bad faith,
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`the risk of prejudice, and a potential adverse effect on the management of the MDL weighing in
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`favor of dismissal), “application of the fourth factor—the effectiveness of less drastic sanctions—
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`counsel[ed] against [dismissal.] Rather than imposing harsh sanctions at this time, the court opts for
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`a lesser sanction and allows the plaintiff one more chance to comply, subject to dismissal, upon
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`motion by the defendant, if [plaintiff] fails to do so.” Id. The court added, that even “considering the
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`administrative and economic realities of multidistrict litigation . . . affording the plaintiff a final
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`chance to comply with discovery, [subject to dismissal] if she fails to do so, is a ‘just order’ under
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`Rule 37 and in line with the Federal Rules of Civil Procedure as a whole.” Id. (citing Fed. R. Civ. P.
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`1.).
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`In Al Bahr Shriners, the District Court for the Southern District of California denied a
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`defendant’s motion to dismiss for failure to serve a PFS and granted the plaintiff an extension as the
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`appropriate sanction for delay, even when the PFS was over six months late. 2016 WL 11265905, at
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`*1–4. The District Court’s reasoning is instructive. The court observed that dismissal is not
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`appropriate unless “at least four factors support dismissal or where at least three factors ‘strongly’
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`support dismissal.” Id. Under the first factor, the court found that the public’s interest in expeditious
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`resolution weighed in favor of dismissal given the six months’ delay. Id. Under the second factor,
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`the court stated “the Court does not believe that a six month delay in providing five fact sheets is the
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`type of excessive delay that warrants dismissal especially when there are over 100 Plaintiffs at
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`issue.” Id. (emphasis added). Under the third factor, the court found that, after sixth months, “loss of
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`evidence and loss of memory by a witness” was a “real concern” and this risk of prejudice weighed
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`in favor of dismissal. Id. Under the fourth factor, the public policy favoring disposition of cases on
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`their merits, the court explained that although it is the “responsibility of a moving party to move his
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`or her case toward disposition on the merits, the Court does not find the Plaintiffs' actions to have so
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`unreasonably delayed progress in this case that it would require going against public policy.” Id.
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`Case 3:19-md-02913-WHO Document 921 Filed 08/27/20 Page 6 of 14
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`Under the fifth factor, of course, the court found that the less drastic sanction of an extension was
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`still available, and a dismissal was not necessary. Id. Ultimately, the court found that only two
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`factors weighed in favor of dismissal (the public’s interest in expeditious resolution of litigation and
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`risk of prejudice to defendant), denied the motion to dismiss, and granted the plaintiff a two-week
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`extension to turn in his PFS. Id.; but see In re Bextra & Celebrex Mktg., Sales Practices & Prod.
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`Liab. Litig., 2007 WL 987813, at *1–2 (N.D. Cal. Mar. 30, 2007) (dismissing claims with prejudice
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`where plaintiffs failed to serve PFS’ even after being granted a 21-day extension by court order); In
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`re Taxotere (Docetaxel) Prod. Liab. Litig., 966 F.3d 351, 359–60 (5th Cir. 2020) (dismissing claims
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`where plaintiff’s PFS was five months late and plaintiff had already received multiple extensions).
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`Here, each of the five factors the Court must consider weighs in favor of denying Defendant
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`JLI’s Motion to Dismiss. First, the public’s interest in expeditious resolution of litigation has not
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`been offended. In Al Bahr Shriners, the court found that this factor weighed in favor of dismissal,
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`where the plaintiff had delayed six months to serve its PFS. By contrast, 75 days have passed since
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`Mr. Lawless’ PFS was originally due on June 12, 2020. Globally, this case is in the early stages of
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`discovery, and current discussion indicate that the first trial will be late 2021 or early 2022. The
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`chance that Plaintiff Lucas Lawless’ individual case will be the first trial is statistically slim. The
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`resolution of this litigation will not be dependent upon one plaintiff’s delay in providing a PFS.
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`Thus, the public interest has not been offended.
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`Second, the court’s need to manage its docket has not been hindered. Mr. Lawless’ delay has
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`not nearly begun to “bring the case to a complete halt,” nor is he asserting a right to “control the
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`pace of the docket.” Al Bahr Shriners, 2016 WL 11265905, at *1–4. Rather, he has lapsed in
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`fulfilling his obligations as a plaintiff for a short period and is in need of an extension. In Al Bahr
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`Shriners, the court found that even a 6-month delay was not the “type of excessive delay that
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`warrants dismissal [under this factor] especially when there are over 100 Plaintiffs at issue[.]”2016
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`Case 3:19-md-02913-WHO Document 921 Filed 08/27/20 Page 7 of 14
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`WL 11265905, at *1–4. In comparison, Mr. Lawless has only delayed a third of that time, and MDL
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`2913 involves several hundred plaintiffs. Therefore, this factor does not weigh in favor of dismissal.
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`Third, at this point in the litigation, there is no risk of prejudice to Defendant JLI because of
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`Mr. Lawless’ delay. In fact, Defendant JLI fails to assert in its motion that it has already or is at any
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`risk of suffering prejudice by Mr. Lawless’ delay in serving a PFS. Plaintiff’s delay has occurred
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`during the early stages of litigation, significant discovery remains to be completed, and a trial date
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`has not been set for any case, let alone Mr. Lawless’ case. Furthermore, granting additional time for
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`Plaintiff to submit a PFS would not prejudice Defendants during the bellwether phase of the
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`litigation. There are hundreds of cases with completed plaintiff fact sheets that will be eligible for
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`bellwether consideration, and Plaintiff’s PFS will become critical only if Plaintiff is selected as a
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`bellwether discovery pool case.
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`Finally, the public policy favoring disposition of cases on their merits and the availability of
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`less drastic sanctions weighs heavily against dismissal. An extension would be a less drastic
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`measure that would preserve the functionality of this MDL without depriving Mr. Lawless of
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`having his case decided on the merits. In many cases, such as In re Gen. Motors LLC, In re Ethicon,
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`Inc., and approximately 250 cases in MDL No. 2325 (a vaginal mesh MDL), including In re Am.
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`Med. Sys., Inc., courts opted for extensions rather than dismissals where the availability of
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`alternatives was the sole or primary factor weighing against dismissals. These holdings represent
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`the general American principle that cases should be reviewed on their merits, and not easily
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`dismissed on procedural grounds. See Franklin v. Jimenez, 586 F. App'x 435, 435–36 (9th Cir.
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`2014) (“all the Federal Rules of Civil Procedure [are] to be liberally construed to effectuate the
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`general purpose of seeing that cases are tried on the merits.”) (internal quotation marks omitted).
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`This principle is especially important when there is a disparity between the legal sophistication of
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`the parties, such as exists between Mr. Lawless and Defendant JLI. See In re Ethicon, Inc., 2016
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`WL 1316637, at *2–3 (denying the defendant’s motion to dismiss for failure to serve PFS and
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`Case 3:19-md-02913-WHO Document 921 Filed 08/27/20 Page 8 of 14
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`allowing the plaintiff additional time to serve a PFS subject to dismissal because, although the court
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`found some bad faith, some risk of prejudice, and some adverse impact on the management of the
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`MDL, granting dismissal would “offend the court’s duty . . . to consider the effectiveness of lessor
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`sanctions.”) (emphasis added). Accordingly, each of these factors weigh in favor of denying
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`Defendant JLI’s Motion to Dismiss.
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`B.
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`Defendant JLI’s Motion to Dismiss should be denied because of
`Plaintiff’s mental and physical condition which was caused by
`Defendants’ conduct.
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`As set forth above, Plaintiff Lucas Lawless began using JUUL at just 17 years old and
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`acquired a severe nicotine addiction that has mentally and physically impacted his brain and ability
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`to function. This has played a part in Plaintiff’s delay in providing a PFS in this litigation.
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`Defendants should not benefit from the very injuries they caused Plaintiff by having his case
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`dismissed at this stage of the litigation.
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`Motions to dismiss for failure to comply with discovery have been regularly denied outside
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`of the context of MDLs where the delay was caused by a plaintiff’s physical or mental health. See
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`e.g., Silva v. United States, 2013 WL 3332599, at *3–5 (E.D. Cal. June 28, 2013) (denying a motion
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`to dismiss based on plaintiff’s failure to provide initial disclosures and granting 60 day extension
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`where “it [wa]s troubling that plaintiff's delay in providing discovery [wa]s at least a partial result of
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`medical injuries she allegedly suffered at the hands of defendant.”); Fontaine v. State Farm Fire &
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`Cas. Co., 2016 WL 520988, at *2 (E.D. Mich. Feb. 4, 2016) (denying motion to dismiss based on
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`plaintiff’s failure to comply with stipulated order compelling discovery and opting for a less harsh
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`sanction where delay “was due to a combination of a good faith misunderstanding of the terms of
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`that order, Plaintiff's out-of-state relocation and health issue(s).”); Sherlock v. Stancato, 2014 WL
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`462961, at *2 (D. Mass. Feb. 4, 2014) (denying motion to dismiss for failure to prosecute where
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`plaintiff’s failure resulted from her having to receive mental health treatment); but see, In re Aredia
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`& Zometa Prod. Liab. Litig., 2007 WL 3069635, at *1–3 (M.D. Tenn. Oct. 18, 2007) (dismissing
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`Case 3:19-md-02913-WHO Document 921 Filed 08/27/20 Page 9 of 14
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`claims without prejudice where plaintiff had previously received “several” extensions and still
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`neglected to file her PFS, explaining, “The Magistrate Judge has repeatedly expressed his
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`understanding that the majority of the Plaintiffs are currently dealing with a variety of severe
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`medical ailments, making it very difficult to actively participate in the litigation process. . . .
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`However, Plaintiffs estate representatives are simply not released from the responsibility[.]”).
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`As noted above, Mr. Lawless’ case is analogous to Silva, Fontaine, and Sherlock, because
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`his delay results in part from harms to his mental and physical health suffered by the hand of
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`Defendants. Because Defendants should not benefit from their wrongful conduct, an extension to
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`comply with CMO 8 would be a more appropriate remedy than immediate dismissal.
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`C.
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`An extension of time for Plaintiff to serve his Plaintiff Fact Sheet is
`warranted pursuant to Federal Rule of Civil Procedure Rule 6(b).
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`Requests for an extension of time to comply with a scheduling or case management order
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`after the deadline has passed are governed by Fed. R. Civ. P. 6(b). E.g., Austin v. Walker, 800 F.
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`App'x 563, 564 (9th Cir. 2020) (applying 6(b) to request for extension to file summary judgment
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`motion after deadline in scheduling order passed); Directv, Inc. v. Carrillo, 227 F. App'x 588, 590
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`(9th Cir. 2007) (same); In re Volkswagen "Clean Diesel" Mktg., Sales Practices, & Prod. Liab.
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`Litig., 895 F.3d 597, 618 (9th Cir. 2018) (applying 6(b) to request for extension of period for class
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`member to opt out of a settlement after deadline in court order passed); In re MI Windows & Doors,
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`Inc., Prod. Liab. Litig., 860 F.3d 218, 226 (4th Cir. 2017) (same); In re Veritas Software Corp. Sec.
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`Litig., 496 F.3d 962, 973 (9th Cir. 2007) (applying 6(b) to request for extension to file an
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`application
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`for attorney’s
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`fees after deadline
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`in court order passed); McCool v.
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`Bridgestone/Firestone N. Am. Tire, LLC, 222 F. App'x 847, 857–58 (11th Cir. 2007) (applying 6(b)
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`to request for extension to file Daubert response after deadline in scheduling order passed); Tiffany
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`v. Unum Life Ins. Co. of Am., 250 F.R.D. 314, 318 (W.D. Mich. 2008) (applying 6(b) to request for
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`extension to file amended complaint after deadline in CMO passed); § 1165 Extending Time—In
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`Case 3:19-md-02913-WHO Document 921 Filed 08/27/20 Page 10 of 14
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`General, 4B Fed. Prac. & Proc. Civ. § 1165 (4th ed.) (“Federal Rule 6(b) governs the extension of
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`time periods prescribed by the federal rules or by an order of the district court”) (emphasis added).
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`Under Rule 6(b), “when an act may or must be done within a specified time,” the court may
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`extend that time where there is good cause and the party failed to act because of excusable neglect.
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`Good cause is a “non-rigorous standard that has been construed broadly,” and is normally satisfied
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`where there is not bad faith on the part of the party seeking extension or prejudice to the adverse
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`party. Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1259 (9th Cir. 2010). Excusable neglect is
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`determined by four factors, “(1) the danger of prejudice to the opposing party; (2) the length of the
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`delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the
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`movant acted in good faith.” Atkins v. Mabus, 654 F. App'x 878, 879 (9th Cir. 2016). For the first
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`factor, as mentioned above, a defendant only suffers prejudice “if the plaintiff’s actions impair the
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`defendant’s ability to go to trial or threaten to interfere with the rightful decision of the case. . . .
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`Delay alone has been held to be insufficient prejudice.” Adriana Int'l Corp., 913 F.2d at 1412. “A
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`district court abuses its discretion by failing to engage in this four-factor test or at least the
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`‘equitable analysis’ captured by the test.” Warkentin v. Federated Life Ins. Co., 594 F. App'x 900,
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`901 (9th Cir. 2014); Farris v. Ranade, 2014 WL 3378566, at *2–3 (9th Cir. July 11, 2014)
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`(instructing the district court to reevaluate the issue of excusable neglect on remand and specifically
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`address at least “all four [primary] factors”).
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`Excusable neglect is an “’elastic concept’ and is not limited strictly to . . . circumstances
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`beyond the control of the movant.” Atkins, 654 F. App'x at 879 (quoting Pioneer Inv. Servs. Co. v.
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`Brunswick Associates Ltd. P'ship, 507 U.S. 380, 392 (1993)). Another important factor in this
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`equitable analysis is the particular circumstances, characteristics, abilities, and disabilities that the
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`movant possesses, as well as the limitations and challenges that burden the movant and movant’s
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`counsel. E.g., Atkins, 654 F. App'x at 879 (finding excusable neglect where attorney’s failure to
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`conduct discovery before deadline was “medically related”; he had suffered a concussion and
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`Case 3:19-md-02913-WHO Document 921 Filed 08/27/20 Page 11 of 14
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`underestimated his recovery time); Norman v. United States, 377 F. Supp. 2d 96, 98-99 (D.D.C.
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`2005) (finding excusable neglect where attorney failed to attend a status conference due to a lack of
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`familiarity with the court’s electronic filing system); Carranza v. Brown, 2016 WL 4376852, at *2–
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`3 (S.D. Cal. Aug. 17, 2016) (finding excusable neglect where plaintiff’s incarceration, prison
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`transfers, mental health issues, and struggle with suicidal tendencies hindered his ability to meet a
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`filing deadline); Tucker v. Cate, 2011 WL 2559532, at *1 (S.D. Cal. June 24, 2011) (finding
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`excusable neglect where plaintiff’s incarceration hindered his ability to meet a filing deadline);
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`Rachel v. Troutt, 820 F.3d 390, 393–95 (10th Cir. 2016) (finding excusable neglect where
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`incarcerated plaintiff’s age (71 years old), physical disability, health problems, medicated status,
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`and limited access to the prison law library hindered her ability to respond to a dispositive motion);
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`see Union Pac. R. Co. v. Progress Rail Servs. Corp., 256 F.3d 781, 782 (8th Cir. 2001) (“[When
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`determining] ‘excusable neglect,’ a district court ought not to focus narrowly on the negligent act
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`that caused the default and ask whether the act was itself in some sense excusable. Instead, the court
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`should take account of all relevant circumstances surrounding the party's omission”) (emphasis
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`added); § 1165 Extending Time—In General, 4B Fed. Prac. & Proc. Civ. § 1165 (4th ed.)
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`(“[excusable neglect] is an equitable concept that must take account of all relevant circumstances of
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`the party's failure to act within the required time.”) (emphasis added).
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`Also, Rule 6(b), “like all the Federal Rules of Civil Procedure, is to be liberally construed to
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`effectuate the general purpose of seeing that cases are tried on the merits.” Franklin, 586 F. App'x at
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`435–36 (internal quotation marks omitted). General categories of excusable neglect include “cases
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`of negligence, carelessness and inadvertent mistake.” Bateman v. U.S. Postal Serv., 231 F.3d 1220,
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`1224 (9th Cir. 2000).P1F
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`2
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`2 Given that the factors for consideration under good cause (bad faith and prejudice to nonmovant)
`are subsumed into the factors for excusable neglect, courts only engage in a single analysis of the
`factors of excusable neglect to determine whether an extension is appropriate when reviewing a
`post-deadline request for extension. E.g., Atkins, 654 F. App'x at 879; see also Fed. R. Civ. P.
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`Case 3:19-md-02913-WHO Document 921 Filed 08/27/20 Page 12 of 14
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`All factors favor Mr. Lawless’ extension request. At most, Plaintiff’s delay in completing a
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`PFS is the result of excusable neglect. There is no indication or allegation that Mr. Lawless’ delay is
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`a result of bad faith. As mentioned above, he is 18 years old and struggling with addiction and
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`anxiety he began suffering as a minor as a direct result of using JLI’s JUUL products at issue.
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`Defendants should not be allowed to benefit from the results of their wrongful conduct to deprive
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`Plaintiff the right to have his case decided on the merits. Further, there is no indication or allegation
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`that Plaintiff’s counsel has acted in bad faith to delay discovery. Plaintiff’s counsel has worked
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`diligently and regularly attempted to contact Mr. Lawless to complete the PFS.
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`Second, as discussed briefly above, Mr. Lawless’ existing delay causes no prejudice to
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`Defendant JLI, nor would an extension cause prejudice. Again, Defendant JLI fails to assert in its
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`motion that it has already or is at any risk of suffering prejudice by Mr. Lawless’ delay in serving an
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`PFS. Plaintiff is not seeking to raise any additional claims; he merely seeks an extension of time in
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`which to submit a PFS. Again, Plaintiff proposes this extension during the early stages of litigation,
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`significant discovery remains to be completed, and a trial date has not been set. Defendant JLI’s
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`discovery of the particular facts of Mr. Lawless’ case matters far less to its ability to defend itself in
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`MDL 2913 than its awareness of the general facts asserted in the Master Complaint and the facts
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`revealed by the timely service of nearly all PFS’ to be common and shared among the majority of
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`plaintiffs in MDL 2913. In other words, at this point in discovery, given that Defendant JLI already
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`possesses the benefit and awareness of common facts through the aggregate of PFS’ that have been
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`timely served, it has not suffered prejudice by Mr. Lawless’ delay. Therefore, an extension of time
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`to complete a PFS will not disrupt or prejudice Defendant’s JLI’s preparation for the general stages
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`of this MDL, nor will it prejudice Defendant JLI’s defense against Mr. Lawless’ case in particular.
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`6(b)(1)(A) (requiring only a showing of good cause when the request for extension is brought
`before the applicable deadline has passed).
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`Case 3:19-md-02913-WHO Document 921 Filed 08/27/20 Page 13 of 14
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`Third, the length of delay has had minimal impact, and an extension would not significantly
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`impact these proceedings. As stated above, 75 days have passed since the original due date of June
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`12, 2020, and 13 days have passed since the adjusted due date of August 12, 2020. Again, this case
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`is not set for trial, is relatively early on in the discovery process, and Defendant JLI did not assert in
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`its motion that this delay or an extension would have any negative impact on this proceeding. Thus,
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`the factor of length of delay weighs in favor of Plaintiff.
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`Fourth, Plaintiff’s reason for delay weighs heavily in favor of granting an extension. As
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`mentioned above, Mr. Lawless is a young litigant, legally unsophisticated, and struggling with
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`addiction and mental health issues caused by Defendants’ conduct. Furthermore, all of this is
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`happening the middle of an unprecedented global pandemic. Thus, Plaintiff’s failure to submit a
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`PFS is, at most, the result of excusable neglect related to his age, addiction, and mental health
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`challenges, and a global pandemic.
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`Finally, this court should consider the particular circumstances, characteristics, abilities, and
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`disabilities that the movant possesses, as well as the limitations and challenges that burden the
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`movant and movant’s counsel. Mr. Lawless’ case is analogous to cases in which an extension has
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`been granted primarily on this basis. The age and mental health of a party, in combination with
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`other factors, supported a finding of excusable neglect in Carranza and Rachel. The movant’s
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`health problems supported a finding of excusable neglect in Atkins and Rachel. Also, even a
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`movant’s lack of familiarity with a particular court’s processes, on its own, was sufficient to support
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`a finding of excusable neglect in Norman. Unfortunately, Mr. Lawless’ tardiness has been caused
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`by each of these kinds of difficulties. In sum, all the appropriate factors support a finding of
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`excusable neglect. Therefore, Plaintiff requests that Mr. Lawless’ motion for an extension of time to
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`serve his PFS be granted and Defendant JLI’s motion to dismiss be denied.
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`Case 3:19-md-02913-WHO Document 921 Filed 08/27/20 Page 14 of 14
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`III.
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`UCONCLUSION
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`Plaintiff respectfully requests that the C