1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CONDALISA LEGRAND, Case No. 22-cv-05815-TSH

8 Plaintiff, ORDER GRANTING LEAVE TO FILE 9 v. RENEWED MOTION FOR CLASS CERTIFICATION 10 ABBOTT LABORATORIES, Re: Dkt. No. 192 11 Defendant.

12 13 I. INTRODUCTION 14 Pending before the Court is Plaintiff Condalisa LeGrand’s Motion for Leave to File 15 Renewed Motion for Class Certification. ECF No. 192. Defendant Abbott Laboratories has filed 16 an Opposition (ECF No. 199) and Plaintiff has filed a Reply (200). The Court finds this matter 17 suitable for disposition without oral argument and VACATES the October 30, 2025 hearing. See 18 Civ. L.R. 7-1(b). For the reasons stated below, the Court GRANTS Plaintiff’s motion. 19 II. BACKGROUND 20 Plaintiff brings this putative class action against Abbott, alleging certain statements on the 21 labels of Abbott’s Ensure® nutrition drinks are false and misleading. Second Am. Compl., ECF 22 No. 116. On June 9, 2023, the Court issued a case management order setting a May 9, 2024 23 deadline to move for class certification. ECF No. 53. That date was subsequently extended to 24 January 23, 2025. ECF No. 99. Plaintiff moved for class certification on January 23 (ECF No. 25 136), and the Court denied her motion on August 4, 2025 (ECF No. 187, “Class Cert. Order”). 26 On September 11, 2025, Plaintiff filed a renewed motion for class certification. ECF No. 27 188. However, as the deadline to move for class certification had passed and Plaintiff did not seek 1 meet and confer to determine if they could agree to permit Plaintiff to file a renewed motion. ECF 2 No. 191. As they were unable to agree (see ECF No. 195), Plaintiff filed the present motion on 3 September 19, 2025. Plaintiff argues leave to file a renewed motion should be granted because 4 she has “worked diligently to supplement the record to specifically address the evidentiary 5 deficiencies related to damages that led the Court to initially deny class certification,” and 6 “[p]ermitting the motion also promotes judicial and party efficiency, as the alternative is a trial on 7 Plaintiff’s individual claims, followed by appeals on Rule 12 and class certification issues, and 8 possible re-trial on a class basis, in addition to a newly filed class action by another representative 9 to protect the timeliness of the Class’s claims.” Mot. at 2. 10 III. LEGAL STANDARD 11 As Plaintiff seeks to file a renewed motion for class certification after the deadline in the 12 Court’s scheduling order, her motion is governed by Federal Rule of Civil Procedure 16’s “good 13 cause” standard. See Fed. R. Civ. P. 16(b)(4) (“A schedule may be modified only for good cause 14 and with the judge’s consent.”); Sandoval v. PharmaCare US, Inc.,

, at *3 (S.D. 15 Cal. Aug. 30, 2016), aff’d in part, rev’d in part on other grounds,

(9th Cir. 16 2018) (denying plaintiff’s request to file a second class certification motion because the motion 17 was “untimely under the case management scheduling orders” and the plaintiff “has not shown 18 good cause or diligence to extend the deadline to move for class certification.”). Rule 16(b)’s 19 good cause standard primarily considers the diligence of the moving party. “Although the 20 existence or degree of prejudice to the party opposing the modification might supply additional 21 reasons to deny a motion, the focus of the inquiry is upon the moving party’s reasons for seeking 22 modification.” Johnson v. Mammoth Recreations, Inc.,

(9th Cir. 1992). 23 At the same time, Plaintiff’s motion is also governed by Federal Rule of Civil Procedure 24 23, which provides a district court with “broad discretion to determine whether a class should be 25 certified, and to revisit that certification throughout the legal proceedings before the court.” 26 Gonzalez v. United States Immigr. & Customs Enf’t,

, 807 (9th Cir. 2020) (citing 27 United Steel, Paper & Forestry, Rubber, Mfg. Energy v. ConocoPhillips Co.,

, 810 1 class certification may be altered or amended before final judgment.” As such, “[a] district court’s 2 order respecting class certification is ‘inherently tentative’ prior to final judgment on the merits.” 3 Howell v. Advantage RN, LLC,

, 1084 (S.D. Cal. 2019) (citing Officers for 4 Justice v. Civil Serv. Comm’n of San Francisco,

(9th Cir. 1982)). “Whether to 5 grant leave to file a renewed motion for class certification is a matter of discretion. Courts, 6 including this one, often grant such leave.” Howard v. Hain Celestial Grp., Inc.,

4369648, at *5 (N.D. Cal. Oct. 1, 2024); see also Coleman v. United Servs. Auto. Ass’n,

11960598, at *1 (S.D. Cal. June 26, 2023) (exercising discretion to grant plaintiffs leave to file 9 renewed motion for class certification without addressing merits of the underlying motion); In re 10 Initial Pub. Offering Sec. Litig.,

, 73 (2d Cir. 2007) (“District courts have ample 11 discretion to consider (or to decline to consider) a revised class certification motion after an initial 12 denial.”). 13 IV. DISCUSSION 14 As a preliminary matter, Defendant argues the Court should deny Plaintiff leave “because 15 she cannot establish either good cause or meet the reconsideration standard necessary to file a 16 renewed class certification motion.” Opp’n at 1. However, no precedential authority exists 17 mandating the Court apply the reconsideration standard to a renewed motion for certification. See 18 Stiner v. Brookdale Senior Living, Inc.,

, at *2 (N.D. Cal. Feb. 7, 2024). As 19 such, courts in this District have declined to impose the reconsideration standard on motions for 20 leave to file a renewed motion for class certification. See

(ruling on renewed motion for 21 certification without applying reconsideration standard and citing cases in which other courts have 22 done the same). And while the Ninth Circuit has yet to opine on the issue, other federal appellate 23 courts have held that it is improper to import the reconsideration standard into Rule 23. See 24 Hargrove v. Sleepy’s LLC,

, 470 (3d Cir. 2020) (“Courts cannot graft onto that 25 provision [Rule 23] the heightened motion-for-reconsideration standard requiring that, in addition 26 to satisfying the typical Rule 23 criteria, plaintiffs show there was a change in controlling law, 27 new evidence, or a clear error.”); Cody v. City of St. Louis for & on behalf of Medium Sec. Inst., 1 Circuit that “[a] district court’s grant of a motion to reconsider class certification is a matter within 2 the court’s broad discretion”) (cleaned up). 3 While Plaintiff’s motion comes after the deadline for filing a class certification motion, the 4 Court finds she has established good cause to modify the case schedule under Rule 16. “The 5 pretrial schedule may be modified if it cannot reasonably be met despite the diligence of the party 6 seeking the extension.” Zivkovic v. S. Cal. Edison Co.,

(9th Cir. 2002) 7 (cleaned up). Here, Plaintiff acted diligently in filing her motion five weeks after the Court’s 8 order denying class certification, which itself came after the deadline to move for class 9 certification. See Blumenfeld Dev. Grp., Ltd. v. Sadlerstone, LLC,

, at *4 (S.D. 10 Cal. Aug. 8, 2022) (finding good cause under Rule 16 and rejecting argument that “a delay of less 11 than two months” meant party “was not diligent”). 12 Further, in denying Plaintiff’s original motion, the Court found all prerequisites for 13 certification under Rule 23 were met except one aspect of manageability under Rule 23(b)(3). 14 Specifically, the Court found Plaintiff did not present a method of proving damages at a class trial 15 because neither of her methodologies met the Supreme Court’s directive under Comcast Corp. v. 16 Behrend,

(2013), after the Court struck Plaintiff’s damages experts under Daubert v. 17 Merrell Dow Pharms., Inc.,

(1993). See Class Cert. Order at 6-10, 17-19. Since that 18 time, Plaintiff states she has supplemented the record to address the evidentiary deficiencies 19 related to damages, including eliciting additional testimony from her damages experts as to their 20 conjoint analysis and by providing evidence that the health message is the reason for purchasing 21 Ensure. Mot. at 2, 5; see also [Proposed] Renewed Motion for Class Certification, ECF No. 193. 22 Under these circumstances, a renewed motion is the appropriate and most efficient procedure to 23 deal with class certification on the merits, which is always preferable. See Davidson v. O’Reilly 24 Auto Enters., LLC,

, 964-65 (9th Cir. 2020) (finding district court did not abuse its 25 discretion when it denied class certification but gave plaintiff the opportunity to cure the 26 deficiency through supplemental evidence);

at 964 n.7 (“[P]arties may move a district court to 27 alter or amend an order granting or denying class certification at any time ‘before final judgment,’ 1 First Am. Corp.,

(9th Cir. 2015) (noting the court had previously vacated the 2 district court’s first denial of class certification so that the plaintiff could pursue additional 3 discovery in an attempt to cure the identified deficiency and file a renewed motion for class 4 certification); Friend v. Hertz Corp.,

, at *2 (N.D. Cal. Sept. 8, 2014) (“The 5 purpose of Rule 23(c)(1)(C) is to afford district courts the latitude to amend an existing class 6 certification order, or an order denying class certification, in light of subsequent developments.”). 7 Relying on Siino v. Foresters Life Ins. & Annuity Co.,

(N.D. Cal. July 8 26, 2022), Defendant argues that “advancing a . . . damages model that Plaintiff could have 9 advanced in the original motion . . . does not constitute ‘good cause’” for amending the scheduling 10 order. Opp’n at 14. However, Plaintiff counters she does not advance a new damages model that 11 she failed to advance previously; instead, she “advances the same model, merely with 12 supplemental testimony to address the Court’s identified concerns based on Abbott’s incorrect 13 claim it requires tens of thousands of surveys.” Reply at 11 (citing Class Cert. Order at 10). 14 Because this case involves a clarification of Plaintiff’s damages theory, it is distinguishable from 15 Siino, where the plaintiff “offered no cognizable damages model that would enable damages to be 16 calculated on a class-wide basis.”

, at *1. Additionally, courts routinely give 17 plaintiffs the opportunity to address deficiencies in damages models at the class certification stage. 18 See McMorrow v. Mondelez Int’l, Inc.,

, at *9 (N.D. Cal. Mar. 9, 2020) 19 (denying certification without prejudice based solely on damages deficiencies), subsequently 20 certified, McMorrow v. Mondelez Int’l Inc.,

, at *1, *10-17 (S.D. Cal. Mar. 8, 21 2021) (granting amended motion for class certification after expert addressed deficiency in 22 proposed conjoint analysis); In re ConAgra Foods, Inc.,

(C.D. Cal. 23 2014) (denying certification without prejudice based in part on damages issues), subsequently 24 certified, In re ConAgra Foods, Inc.,

(C.D.

) (granting certification after permitting plaintiffs to file a renewed motion with damages 26 deficiencies cured), aff’d sub nom Briseno v. ConAgra Foods, Inc.,

(9th Cir. 2017); 27 Allen v. ConAgra Foods, Inc.,

, at *2 (N.D. Cal. Jan. 9, 2015) (denying 1 Allen v. ConAgra Foods, Inc.,

, 674 (N.D. Cal. 2019); Vizearra v. Unilever United 2 States, Inc.,

, 554, 556 (N.D. Cal. 2021) (denying class certification without 3 || prejudice where conjoint model found insufficient), subsequently certified, Vizcarra v. Unilever 4 U.S., Inc.,

, at *2, *16-19 (N.D. Cal. Feb. 24, 2023). The Court finds Plaintiff 5 should be given the same opportunity. 6 Therefore, the Court finds good cause exists and exercises its discretion to grant Plaintiff 7 leave to file her renewed motion, without addressing the merits of her underlying motion. 8 Vv. CONCLUSION 9 Based on the analysis above, the Court GRANTS Plaintiff’s motion for leave to file a 10 || renewed motion for class certification. Plaintiff shall file her renewed motion in substantially the 11 same form as the [Proposed] Renewed Motion for Class Certification attached to her Motion for 12 || Leave to File a Renewed Class Certification Motion, with a hearing date properly noticed pursuant 5 13 to Civil Local Rule 7. 14 IT IS SO ORDERED.

16 Dated: October 10, 2025

18 THOMAS S. HIXSON United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28