DOVEL & LUNER, LLP

Simon Franzini, Cal. Bar #287631*

simon@dovel.com

Gregory S. Dovel, Cal. Bar #135387*

greg@dovel.com

Jonas Jacobson, Cal. Bar #269912*

jonas@dovel.com

201 Santa Monica Blvd., Suite 600

Santa Monica, California 90401

Tel: (310) 656-7066

Fax: (310) 656-7069

(additional counsel listed on next page)

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

LORI WAKEFIELD, individually and 

on behalf of a class of others similarly 

situated, 

 Plaintiff,

 v.

VISALUS, INC.,

a Nevada corporation,

 Defendant.

No. 3:15-cv-01857

Plaintiff’s response in opposition to 

Defendant’s motion to continue

Case 3:15-cv-01857-SI Document 181 Filed 01/18/19 Page 1 of 18
EDELSON PC

Rafey S. Balabanian, ILB #6285687*

rbalabanian@edelson.com

Eve-Lynn J. Rapp, ILB #6300632*

erapp@edelson.com

Lily E. Hough, SBN #315277*

lhough@edelson.com

123 Townsend Street, Suite 100

San Francisco, California 94107

Tel: (415) 212-9300

Fax: (415) 373-9435

FORUM LAW GROUP

Scott F. Kocher, OSB #015088

Stephen J. Voorhees, OSB #150595

811 S.W. Naito Parkway, Suite 420

Portland, Oregon 97204

Tel/Fax: (503) 445-2120

* admitted pro hac vice

Attorneys for Plaintiff Wakefield and the Certified Class

Case 3:15-cv-01857-SI Document 181 Filed 01/18/19 Page 2 of 18
Plaintiff’s response to motion to continue i

Table of Contents

I. Introduction. ......................................................................................................... 1

II. The Court should deny ViSalus’ motion to continue the trial date......................... 1

A. ViSalus was not diligent............................................................................. 2

1. ViSalus was not diligent in selecting a new trial counsel at 

Quarles & Brady and getting that counsel up to speed. .................... 2

2. ViSalus was not diligent in hiring additional trial counsel. .............. 6

3. ViSalus was not diligent in pursuing settlement opportunities. ........ 7

4. ViSalus was not diligent in seeking a continuance........................... 8

B. ViSalus can reasonably meet the current deadlines..................................... 9

C. Continuing the trial would prejudice Ms. Wakefield and the 

Certified Class.......................................................................................... 11

III. Conclusion.......................................................................................................... 12

Case 3:15-cv-01857-SI Document 181 Filed 01/18/19 Page 3 of 18
Plaintiff’s response to motion to continue ii

Table of Authorities

Cases

Docusign, Inc. v. Sertifi, Inc., 

468 F. Supp. 2d 1305 (W.D. Wash. 2006).................................................................. 12

Horner Equip. Int’l, Inc., v. Seascape Pool Ctr., Inc., 

Case No. 1987-329, 1990 U.S. Dist. LEXIS 12101 (D.V.I. Aug. 15, 1990)................ 12

Johnson v. Mammoth Recreations Inc., 

975 F.2d 604 (9th Cir. 1992)...............................................................................1, 2, 11

Ojmar US, LLC v. Sec. People, Inc., 

Case No. 16-cv-04948-HSG, 2018 U.S. Dist. LEXIS 60975 (N.D. Cal. Apr. 10, 2018)

.................................................................................................................................. 13

United States v. Patterson, 

230 F.3d 1168 (9th Cir. 2000).................................................................................... 12

Zivkovic v. S. Cal. Edison Co., 

302 F.3d 1087 (9th Cir. 2002)...................................................................................... 1

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Plaintiff’s response to motion to continue 1

I. Introduction.

ViSalus does not need a continuance. It is simply seeking to delay judgment day. 

Moreover, ViSalus cannot meet the controlling “good cause” standard. Its motion should 

be denied. 

II. The Court should deny ViSalus’ motion to continue the trial date. 

Under controlling Ninth Circuit law, to continue the trial, ViSalus must 

demonstrate “good cause.” Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 

2002) (“In general, the pretrial scheduling order can only be modified ‘upon a showing of 

good cause.’”). To demonstrate “good cause,” ViSalus must show that, (A) “despite the 

diligence of” ViSalus, (B) the current deadlines “cannot reasonably be met.” Johnson v. 

Mammoth Recreations Inc., 975 F.2d 604, 609 (9th Cir. 1992). 

Proving that there is “good cause” to continue trial requires evidence: evidence 

that ViSalus was diligent, and evidence that ViSalus cannot meet the current deadlines. 

But even though ViSalus bears the burden of proof, ViSalus does not provide any 

evidence whatsoever in support of its motion—not corporate records, not a declaration 

from a corporate representative, not even a declaration from counsel. 1 

Moreover, as shown below, the evidence shows that ViSalus was not diligent and 

that the current deadlines can be met. Accordingly, ViSalus cannot carry its burden. The

motion should be denied. 

 1 The declaration from counsel attached to ViSalus’ motion is limited to detailing

the parties’ meet and confer efforts leading up to the filing of the motion—it is not a 

declaration demonstrating that ViSalus was diligent or cannot meet the current deadlines. 

See Mot. Ex. 1 (Declaration of Sarah Anchors). 

Case 3:15-cv-01857-SI Document 181 Filed 01/18/19 Page 5 of 18
Plaintiff’s response to motion to continue 2

A. ViSalus was not diligent. 

To prevail on its motion, ViSalus must demonstrate that it was diligent. “If 

[ViSalus] was not diligent, the inquiry should end” and its motion should be denied. 

Johnson, 975 F.2d at 609; Zivkovic, 302 F.3d at 1087 (“If the party seeking the 

modification ‘was not diligent, the inquiry should end’ and the motion to modify should 

not be granted.”). ViSalus cannot meet this standard. Accordingly, the motion should be 

denied. 

1. ViSalus was not diligent in selecting a new trial counsel at 

Quarles & Brady and getting that counsel up to speed. 

According to ViSalus, the primary reason why it needs a continuance is because 

its lead trial counsel, S. Douglas Knox, left the Quarles & Brady law firm. 2

 ViSalus

contends that another lawyer at Quarles & Brady, John O’Neal, needs additional time to 

get up to speed on the case. 3

 Mot. 2-3.

ViSalus’ motion is carefully drafted to give the impression that Mr. Knox only 

recently left the firm on January 9, 2019, and that Mr. O’Neal began the process of 

getting up to speed on this case immediately after Mr. Knox announced he was leaving: 

ViSalus’s trial counsel, S. Douglas Knox, left the law firm of Quarles & 

Brady LLP (“Quarles”) and therefore a notice of withdrawal was filed on 

January 9, 2019, pursuant to LR 83-11(b) . . . . Withdrawing counsel and 

Quarles associate Zachary Foster (admitted pro hac vice) are working 

diligently with firm partner and experienced trial counsel John M. O’Neal 

 2 ViSalus also notes that Sarah Anchors, another attorney at Quarles & Brady who 

worked on this case, recently left the firm. Mot. 3. 

3 As ViSalus admits, Zachary Foster, yet another attorney at Quarles & Brady who 

has been working on the case, remains at the firm and will assist Mr. O’Neal in getting up 

to speed. Mot. 3. In addition, ViSalus’ local counsel—who has been intimately involved 

in the case since day one—will continue to represent ViSalus. 

Case 3:15-cv-01857-SI Document 181 Filed 01/18/19 Page 6 of 18
Plaintiff’s response to motion to continue 3

to bring him up to speed in this matter. 

Mot. 3. 4

The reality, however, is that ViSalus and its counsel knew that Mr. Knox was 

leaving Quarles & Brady well before January 9, but apparently waited almost a month to 

bring Mr. O’Neal on board and start getting him up to speed. 

In response to an inquiry by Plaintiff’s counsel, Quarles & Brady acknowledged 

that Mr. Knox gave his official notice that he was leaving on December 12, 2018—four 

weeks before he withdrew from the case. Moreover, Mr. Knox left the firm shortly after 

giving official notice, on December 17, 2018: 

 4 Mr. O’Neal made his appearance in the case on January 10, 2019, one day after 

Mr. Knox withdrew from the case. Dkt. 162 (pro hac vice application of John O’Neal).

Case 3:15-cv-01857-SI Document 181 Filed 01/18/19 Page 7 of 18
Plaintiff’s response to motion to continue 4

Ex. 1 (email chain between counsel for Plaintiff and counsel for Defendant). 

A company that is diligently working to select new trial counsel at its retained firm 

and bring that counsel up to speed for an imminent trial does not wait four weeks to settle 

on which lawyer is going to try the case. It selects that new lawyer within days and 

immediately begins preparing him or her for trial. 

ViSalus, however, waited four weeks to select an alternative lawyer at Quarles & 

Brady to represent it and begin preparing that lawyer for trial. And even though ViSalus 

has the burden to prove diligence, ViSalus did not provide any evidence of what it was 

doing between December 12 and January 11 to select a new trial lawyer, or otherwise 

Case 3:15-cv-01857-SI Document 181 Filed 01/18/19 Page 8 of 18
Plaintiff’s response to motion to continue 5

explain this delay. Instead, it attempted to sweep this issue under the rug with language 

in its brief designed to conceal the delay. 

In addition, ViSalus has not established that it needs new trial counsel. ViSalus 

could have continued to use Mr. Knox as trial counsel even after he switched firms. 

Mr. Knox left Quarles & Brady to join the Spencer Fane law firm. Ex. 2 (Doug 

Knox bio at Spencer Fane). Spencer Fane is a firm that, among other things, defends 

companies like ViSalus against TCPA class actions just like this one. See, e.g., Ex. 3

(Joshua Dickinson bio at Spencer Fane) (stating that “Josh has developed significant

experience in defending ... class action claims brought under the ... Telephone 

Consumer Protection Act (TCPA),” and listing defense-side experience in six TCPA 

class actions). Although ViSalus has the burden of showing diligence, ViSalus does not 

provide any evidence that it even asked Mr. Knox to continue to represent ViSalus as trial 

counsel at his new firm. Nor does ViSalus explain why it failed to do so, or articulate 

any reason (such as a conflict) why Mr. Knox could not continue to represent ViSalus at 

his new firm. 

Notably, Mr. Knox’s notice of withdrawal states that Mr. Knox withdrew his 

representation “because he is no longer affiliated with the defense firm Quarles & Brady 

LLP.” Dkt. 158 (Notice of Withdrawal). The notice does not assert that Mr. Knox now 

has a conflict or that he would be unable or unwilling to continue representing ViSalus as 

trial counsel for any other reason. 

Case 3:15-cv-01857-SI Document 181 Filed 01/18/19 Page 9 of 18
Plaintiff’s response to motion to continue 6

Because ViSalus has not established that it needed to select new counsel at 

Quarles & Brady and get that counsel up to speed, or that it was diligent in doing so, it 

cannot establish the “good cause” necessary to continue trial. 

2. ViSalus was not diligent in hiring additional trial counsel. 

ViSalus asserts that—separate and apart from the need for Mr. O’Neal to get up to 

speed on the case—it needs a continuance for the additional reason that “ViSalus is 

likewise considering adding an additional trial firm” in addition to Quarles & Brady. 

Mot 3. ViSalus further asserts that it “has diligently worked to obtain counsel to assist 

with this matter.” Mot. 3. In follow-up email correspondence, ViSalus explained that 

“ViSalus began the process of considering to hire additional counsel in early December 

and continues to work toward retaining an additional firm as part of its defense team.” 

Ex. 1 (email chain between counsel for Plaintiff and counsel for Defendant). This 

argument similarly lacks merit. 

Despite its burden to show diligence, ViSalus does not support (or even elaborate 

on) its assertion that it “has diligently worked” to obtain additional counsel for trial. 

ViSalus does not provide a single example of even one thing that it did that would 

support a finding that it acted diligently. It does not provide evidence of how many hours 

it spent “considering” hiring additional trial counsel; evidence of how many firms it 

researched and interviewed; or evidence that, despite such efforts, it still has not been 

able to retain adequate representation (e.g., due to extensive conflicts.)

Moreover, the current trial date in this case was set on September 6, 2018. Dkt. 

153 (Scheduling Order). A party acting diligently to hire a second law firm to represent 

Case 3:15-cv-01857-SI Document 181 Filed 01/18/19 Page 10 of 18
Plaintiff’s response to motion to continue 7

it at trial would not wait until three months before the trial to begin “considering” hiring 

that second law firm. 5

 Moreover, once the “considering” process began, it would not 

wait more than six additional weeks to actually hire the additional firm. Instead, it would 

begin the process well in advance of trial. And it would conclude the process sufficiently 

in advance of trial to allow the lawyers at that additional firm to get up to speed on the 

case without the need for a continuance. Indeed, that is exactly what Ms. Wakefield did: 

she began seeking additional trial counsel shortly after trial was set, and retained the 

Dovel & Luner law firm sufficiently in advance of trial to permit the lawyers at the firm 

to get fully up to speed on the case under the existing schedule. 

In addition, ViSalus has not established that it needs an additional trial firm to 

support Mr. O’Neal. As ViSalus admits, Mr. O’Neal is an “experienced trial counsel” 

who is perfectly capable of representing ViSalus at the upcoming trial. Mot. 3. In 

addition, Mr. O’Neal will be supported by other attorneys at his firm, as well as by two

attorneys at Miller, Nash, Graham & Dunn, LLP, who have been actively involved in the 

case. Accordingly, the supposed need to hire additional trial counsel from another firm 

cannot establish the “good cause” necessary to continue trial. 

3. ViSalus was not diligent in pursuing settlement opportunities. 

ViSalus also asserts that “ViSalus also believes the continuance will enable the 

parties to engage in further meaningful settlement discussions.” Mot. 4. This assertion 

lacks merit. 

 5 Trial in this case was originally set for November 6, 2018. Dkt. 153 (scheduling 

order). Never once leading up to that trial did ViSalus claim that it needed to hire

additional trial counsel to represent it. 

Case 3:15-cv-01857-SI Document 181 Filed 01/18/19 Page 11 of 18
Plaintiff’s response to motion to continue 8

First, at least in Plaintiff’s counsel’s experience, continuances do not promote 

settlement or settlement discussions—they hinder them by postponing judgment day. 

Second, a party diligently pursuing settlement opportunities will take concrete 

steps to move the parties toward settlement. For example: proposing to mediate; 

requesting a settlement meeting; requesting or providing a settlement offer; or, at a 

minimum, requesting a phone call to discuss settlement. 

However—other than vaguely mentioning settlement discussions as a reason for 

continuing the trial in its meet and confer and in its present motion—ViSalus did not 

raise the topic of settlement with Plaintiff once from well before the February 20, 2018,

trial date was set until the afternoon of the day this opposition was due. 6

 Rapp. decl. ¶3. 

Nor did it take any concrete steps to move the parties toward settlement. Id. at ¶¶3-4. 

Accordingly, ViSalus has not shown and would not be able to show diligence in pursuing 

settlement. It cannot establish “good cause” based on the need to “engage in further 

meaningful settlement discussions.”

4. ViSalus was not diligent in seeking a continuance. 

Finally, ViSalus was not diligent in seeking the continuance itself. ViSalus knew 

about the departure of Mr. Knox, knew about the supposed need to hire a second law 

firm, and knew about the possibility of settlement no later than December 12, 2018. But 

ViSalus waited until Friday, January 4, 2019, to request a continuance from Plaintiff. 

And even after Plaintiff informed ViSalus that it opposed the request on the very next 

 6 On January 18, 2019, just as counsel for Plaintiff was finalizing this opposition, a 

representative of ViSalus called counsel for Plaintiff to discuss, among other things, 

settlement. Rapp. decl. ¶5. 

Case 3:15-cv-01857-SI Document 181 Filed 01/18/19 Page 12 of 18
Plaintiff’s response to motion to continue 9

Monday (January 7), ViSalus waited the entire week until Friday (January 11) to actually 

bring a motion. 7

 

A party diligently seeking a continuance of an imminent trial will not wait several 

weeks after the supposed need arises to request one. It will request one right away. 

ViSalus, however, waited over four weeks to move for a continuance, and provides no 

explanation for this delay. 

* * *

Because ViSalus has failed to meet its burden of showing diligence, its motion 

must be denied.

B. ViSalus can reasonably meet the current deadlines. 

Despite its lack of diligence, ViSalus can still reasonably meet the current 

deadlines. This is a second independent reason its motion should be denied. 

This is not a case that requires months to get up to speed. Although this is a class 

action, Plaintiff is only asserting two causes of action at trial, and only one on behalf of 

the class. Dkt. 176 (Plaintiff’s trial brief), 1-2. Each involves only three elements. Id. at

2-3, 8-9. Those three elements are straightforward and involve simple proof, e.g.: 

• Was a telephone call placed? 

• Was the phone number a residential or mobile phone number? 

• Did the call involve an artificial or prerecorded voice? 

 7 Notably, as ViSalus was aware, Plaintiff’s trial-related disclosures were due the 

following Wednesday, January 16. ViSalus’ additional delay prevented its motion from 

being resolved in advance of the deadline for those disclosures. 

Case 3:15-cv-01857-SI Document 181 Filed 01/18/19 Page 13 of 18
Plaintiff’s response to motion to continue 10

• Was the phone number on the National Do Not Call Registry?

Id. And many of those elements are undisputed. Id. There is no complex technology to 

learn, no experts (and, as a result, no expert reports or expert witnesses to examine), and 

no complex law to analyze. 

Moreover, the pretrial record is limited and easy to digest. Only five depositions 

were taken in this case—two of the same person. See Mot. 4. And although ViSalus 

asserts that there were “thousands of pages of document production,” Mot. 4, the vast 

majority of those pages are call log spreadsheets comprising thousands of rows of data, 

but only a handful of data fields. See, e.g., Plaintiff’s trial exhibit 38. Digesting these 

call log spreadsheets does not require studying thousands of pages, as ViSalus suggests—

it requires only reading and understanding a handful of column headers. 

Furthermore, the trial will be brief—three days, with four-and-a-half hours of 

testimony per side. Dkt. 154 (September 4, 2018 telephonic status conference transcript) 

at 3, 7. At most, four witnesses will testify, including one who will simply authenticate a 

summary under Rule 1006 of the Federal Rules of Evidence. Dkt. 174 (Plaintiff’s

witness list). And there are only 65 or so exhibits on Plaintiff’s exhibit list. Dkt. 173 

(Plaintiff’s exhibit list). 8

Finally, this motion will not be heard until after ViSalus prepares its pretrial 

disclosures, which are due next Wednesday, January 23. By then, most of the pretrial 

 8 The exhibit list includes three compilation exhibits, each containing numerous 

spreadsheets. However, these spreadsheets contain largely overlapping fields and do not 

need to be individually examined. 

Case 3:15-cv-01857-SI Document 181 Filed 01/18/19 Page 14 of 18
Plaintiff’s response to motion to continue 11

work will have been completed, and it will have to be completed by ViSalus’ new trial 

counsel. Accordingly, by the time the Court hears this motion on January 24, ViSalus’ 

new trial counsel will already be up to speed. There is no need for additional time. 

ViSalus states that “new counsel will need time to learn this case, review all of the 

filings, participate in pre-trial meet and confer sessions, participate in forming pre-trial 

filing and trial strategy, and prepare for trial.” Mot. 3. But this sentence does not even 

say what the “good cause” standard actually requires—that the current deadlines “cannot 

reasonably be met.” Johnson v. Mammoth Recreations Inc., 975 F.2d 604, 609 (9th Cir. 

1992). And even though it has the burden on its motion, ViSalus does not provide any 

evidence—not a declaration from new counsel or anything else—that would support such 

an assertion. 

ViSalus can meet the current deadlines. Its motion should be denied for this 

additional reason. 

C. Continuing the trial would prejudice Ms. Wakefield and the Certified 

Class. 

ViSalus argues that the Court should grant a continuance because “[t]he 

continuance would not prejudice Plaintiff.” Mot. 4. This argument lacks merit. 

“Although the existence or degree of prejudice to the party opposing the 

modification might supply additional reasons to deny a motion, the focus of the inquiry is 

upon the moving party’s reasons for seeking modification.” Johnson v. Mammoth 

Recreations Inc., 975 F.2d 604, 609 (9th Cir. 1992) (emphasis added). As explained 

above, ViSalus’ “reasons for seeking modification” do not justify a continuance. 

Accordingly, lack of prejudice would not justify granting ViSalus’ motion. 

Case 3:15-cv-01857-SI Document 181 Filed 01/18/19 Page 15 of 18
Plaintiff’s response to motion to continue 12

Moreover, there is prejudice here. 

First, Ms. Wakefield and the Certified Class have been waiting since October 2015 

to get their day in court. It would be prejudicial for them to have to wait any longer, even 

if that delay were just a few months. Horner Equip. Int’l, Inc., v. Seascape Pool Ctr., 

Inc., Case No. 1987-329, 1990 U.S. Dist. LEXIS 12101, at *10 (D.V.I. Aug. 15, 1990)

(“Justice delayed is justice denied. When the delay is attributable to one of the parties 

rather than to some external factor, there is no basis for overlooking the prejudice that 

accrues with the delay.”).

Second, Plaintiff and Plaintiff’s counsel worked diligently—including over the 

holidays—to prepare for trial on the set date. In addition, Plaintiff, Plaintiff’s counsel, 

and Plaintiff’s witnesses have made arrangements for trial and have built their schedule 

around the set trial date. Continuing that date on the eve of trial would interrupt 

Plaintiff’s trial preparation, and require Plaintiff, Plaintiff’s counsel, and Plaintiff’s 

witnesses to make different arrangements and rework their schedules to accommodate 

any new trial date. 

III. Conclusion. 

Because ViSalus fails to provide any evidence that it was diligent or that it needs a 

continuance, it cannot show “good cause” under controlling Ninth Circuit law. 

Moreover, ViSalus cannot present such evidence for the first time in reply. Docusign, 

Inc. v. Sertifi, Inc., 468 F. Supp. 2d 1305, 1307 (W.D. Wash. 2006) (citing United States 

v. Patterson, 230 F.3d 1168, 1172 (9th Cir. 2000) (“It is well established that new 

arguments and evidence presented for the first time in Reply are waived.”). Accordingly, 

Case 3:15-cv-01857-SI Document 181 Filed 01/18/19 Page 16 of 18
Plaintiff’s response to motion to continue 13

ViSalus’ motion should be denied. Ojmar US, LLC v. Sec. People, Inc., Case No. 4:16-

CV-04948-HSG, 2018 U.S. Dist. LEXIS 60975, at *7 (N.D. Cal. Apr. 10, 2018) (denying 

motion to continue trial) (“Defendants cannot now complain of prejudice based on the 

long-known court-ordered schedule.”). 

Date: January 18, 2019 Respectfully submitted,

By: /s/ Simon Franzini

DOVEL & LUNER, LLP

Simon Franzini, Cal. Bar #287631*

simon@dovel.com

Gregory S. Dovel, Cal. Bar #135387*

greg@dovel.com

Jonas Jacobson, Cal. Bar #269912*

jonas@dovel.com

201 Santa Monica Blvd., Suite 600

Santa Monica, California 90401

Tel: (310) 656-7066

Fax: (310) 656-7069

EDELSON PC

Rafey S. Balabanian, ILB #6285687*

rbalabanian@edelson.com

Eve-Lynn J. Rapp, ILB #6300632*

erapp@edelson.com

Lily E. Hough, SBN #315277*

lhough@edelson.com

123 Townsend Street, Suite 100

San Francisco, California 94107

Tel: (415) 212-9300

Fax: (415) 373-9435

FORUM LAW GROUP

Scott F. Kocher, OSB #015088

Stephen J. Voorhees, OSB #150595

811 S.W. Naito Parkway, Suite 420

Portland, Oregon 97204

Case 3:15-cv-01857-SI Document 181 Filed 01/18/19 Page 17 of 18
Plaintiff’s response to motion to continue 14

Tel/Fax: (503) 445-2120

* admitted pro hac vice

Attorneys for Plaintiff Wakefield and the 

Certified Class

CERTIFICATE OF SERVICE

I, Simon Franzini, an attorney, certify that on January 18, 2019, I served the foregoing by 

causing true and accurate copies of such paper to be transmitted to all counsel of record via the 

Court’s CM/ECF electronic filing system.

/s/ Simon Franzini

Case 3:15-cv-01857-SI Document 181 Filed 01/18/19 Page 18 of 18