Case 3:23-cv-04597-EMC Document 121 Filed 10/24/24 Page 1 of 5
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`(Additional counsel on following page)
`JESSICA R. PERRY (SBN 209321)
`jperry@orrick.com
`MELINDA S. RIECHERT (SBN 65504)
`mriechert@orrick.com
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`1000 Marsh Road
`Menlo Park, CA 94025-1015
`Telephone:
`+1 650 614 7400
`Facsimile:
`+1 650 614 7401
`KATHRYN G. MANTOAN (SBN 239649)
`kmantoan@orrick.com
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`The Orrick Building
`405 Howard Street
`San Francisco, CA 94105-2669
`Telephone:
`+1 415 773 5700
`Facsimile:
`+1 415 773 5759
`Attorneys for Defendant Apple Inc.
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
`
`ASHLEY GJOVIK,
`Plaintiff,
`
`v.
`APPLE INC.,
`
`Defendant.
`
`Case No. 23-cv-4597-EMC
`DEFENDANT APPLE INC.’S
`OPPOSITION TO PLAINTIFF ASHLEY
`GJOVIK’S “EMERGENCY
`ADMINISTRATIVE MOTION” (DKT.
`115)
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`DEF.’S OPP. TO PL.’S “EMERGENCY
`ADMINISTRATIVE MOTION” (DKT. 115)
`[23-CV-4597-EMC]
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`

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`Case 3:23-cv-04597-EMC Document 121 Filed 10/24/24 Page 2 of 5
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`KATE E. JUVINALL (SBN 315659)
`kjuvinall@orrick.com
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`631 Wilshire Blvd., Suite 2-C
`Santa Monica, CA 90401
`Telephone:
`+1 310 633 2800
`Facsimile:
`+1 310 633 2849
`RYAN D. BOOMS (SBN 329430)
`rbooms@orrick.com
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`2100 Pennsylvania Avenue NW
`Washington, D.C. 20037
`Telephone:
`+1 202 339 8400
`Facsimile:
`+1 202 339 8500
`Attorneys for Defendant
`Apple Inc.
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`DEF.’S OPP. TO PL.’S “EMERGENCY
`ADMINISTRATIVE MOTION” (DKT. 115)
`[23-CV-4597-EMC]
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`

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`Case 3:23-cv-04597-EMC Document 121 Filed 10/24/24 Page 3 of 5
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`Apple submits this response to Plaintiff Ashley Gjovik’s October 22, 2024 “Emergency
`Administrative Motion” (Dkt. 115) seeking to relieve her of her obligation to file a Fifth Amended
`Complaint (“5AC”) by the October 29, 2024 deadline set by the Court on October 1, 2024. The
`Court should deny the motion in its entirety. Plaintiff’s effort to delay and further prolong resolution
`of this case, that has not yet advanced past the pleadings in the 13 months since Plaintiff first filed,
`should be rejected, so that the case can proceed forward.
`On October 1, 2024, the Court ordered Plaintiff to file her 5AC within 28 days. In an effort
`to delay her obligation to comply with this Court’s order, she filed a meritless appeal to the Ninth
`Circuit and now asks this Court to relieve her of her obligation to timely file her 5AC. Plaintiff has
`failed to demonstrate “good cause” for her request to extend time to file her 5AC, and she has also
`failed to show any “substantial harm or prejudice” that would occur if the Court denied her
`extension request. Further, Plaintiff has failed to provide any valid justification for her alternative
`request to permit her to file a 200-page 5AC, particularly in light of the Court’s repeated rulings
`that her prior complaints were excessive in length and failed to comply with Rule 8 of the Federal
`Rules of Civil Procedure. See, e.g., Dkt. 46 at 2-3.
`I.
`RELEVANT PROCEDURAL HISTORY
`On October 1, 2024, the Court granted in part and denied in part Apple’s motion to dismiss
`the Fourth Amended Complaint and required Plaintiff to file a 5AC (subject to strict parameters
`regarding what amendments would be permitted) by October 29, 2024. See Dkt. 112 (the “October
`1 Order”). That same day, Plaintiff filed a notice of appeal of the October 1 Order to the United
`States Court of Appeals for the Ninth Circuit (see Dkt. 113), notwithstanding that the October 1
`Order is not a “final decision[ ] of the district courts” and thus the appellate court lacks jurisdiction
`under 28 U.S.C. § 1291.
`On October 22, 2024—one week before the deadline to file the 5AC—Plaintiff filed a
`motion to stay all proceedings in this Court pending her (improper) appeal. See Dkt. 117 (the
`“Motion to Stay”). Separately, Plaintiff also filed an “emergency” motion to (a) change the deadline
`to file her 5AC to “at least two weeks, ideally 30 days, following a decision on the Motion to Stay”
`if the Court denies the Motion to Stay, or (b) stay the deadline if the Court grants the Motion to
`DEF.’S OPP. TO PL.’S “EMERGENCY
`ADMINISTRATIVE MOTION” (DKT. 115)
`[23-CV-4597-EMC]
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`Case 3:23-cv-04597-EMC Document 121 Filed 10/24/24 Page 4 of 5
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`Stay. See Dkt. 115 at 3 (the “Motion to Change Time”). Alternatively, she requested in the same
`filing that, to the extent the Court denies her Motion to Change Time, the Court allow her to exceed
`the 75-page limitation for the 5AC set by the Court in the October 1 Order and permit her to file a
`200-page 5AC on the current deadline of October 29, 2024. See id. (“Motion to Exceed Page
`Limitation”).
`II.
`ARGUMENT
`The Motion to Change Time should be denied because Plaintiff fails to set forth “good
`cause” for the requested deadline change, as is required by Fed. R. Civ. P. 6(b)(1)(A), and also fails
`to identify any “substantial harm or prejudice” that would occur if the Court did not change the
`time, as is required by Civ. L.R. 6-3. First, Plaintiff insists that the deadline for the 5AC should be
`changed “as a matter of judicial economy” because she appealed the October 1 Order to the Ninth
`Circuit. Dkt. 115 at 2-3. But the October 1 Order is a non-final order granting partial dismissal of
`some her claims, and thus the Ninth Circuit lacks jurisdiction over Plaintiff’s premature appeal.1
`As such, this Court should disregard her notice of appeal and deny her request to extend the deadline
`to file her 5AC. Ruby v. Sec’y of U. S. Navy, 365 F.2d 385, 389 (9th Cir. 1966) (“Where the
`deficiency in a notice of appeal, by … reference to a non-appealable order, is clear to the district
`court, it may disregard the purported notice of appeal and proceed with the case, knowing that it
`has not been deprived of jurisdiction.”); Currier v. JP Morgan Chase Bank, NA, No. 20CV227-
`LAB (JLB), 2020 WL 1433282, at *1 (S.D. Cal. Mar. 23, 2020) (“The Court concludes that
`[plaintiff’s] notice of appeal from its non-final, non-appealable order does not deprive it of
`jurisdiction. The parties should treat this case as active and ongoing. The Court’s orders regarding
`the filing of an amended complaint and response [] remain in place[.]”). Otherwise, Plaintiff’s
`improper attempt to appeal a non-final order would undermine judicial economy and delay
`proceedings in this Court even further than her sprawling successive complaints already have.
`Second, Plaintiff does not even attempt to argue that she would suffer any “substantial harm or
`
`1 On October 24, 2024, Apple filed with the Ninth Circuit a motion to dismiss for lack of appellate
`jurisdiction. Gjovik v. Apple Inc., No. 24-6058, Dkt. 5.1. Under 9th Cir. R. 27-11(a)(1), the filing
`of the motion to dismiss stays the appellate briefing schedule.
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`DEF.’S OPP. TO PL.’S “EMERGENCY
`ADMINISTRATIVE MOTION” (DKT. 115)
`[23-CV-4597-EMC]
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`Case 3:23-cv-04597-EMC Document 121 Filed 10/24/24 Page 5 of 5
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`prejudice” should the deadline remain unchanged. On the contrary, further delay would only cause
`harm to Apple by further prolonging resolution of this case that has not yet advanced past the
`pleadings in the 13 months since Plaintiff first filed.
`The Motion to Exceed Page Limitation should also be denied because Plaintiff does not
`provide any rational justification for requesting 200 pages for her 5AC. First, the Court already
`made clear, when it first set the 75-page limit, “this is not the kind of case that warrants a complaint
`hundreds of pages in length.” Dkt. 46 at 3. “[E]ven [Plaintiff’s] original complaint – which was
`more than 150 pages [] – failed to comply with Rule 8.” Id. Surely, then, a 200-page complaint
`would fail to comply with Rule 8. Second, Plaintiff is incorrect that she would need to “retain the
`claims dismissed with prejudice” in the October 1 Order “for the sake of preserving error for later
`appeal.” Dkt. 115 at 3. Controlling authority clearly holds the opposite. See , e.g., Lacey v. Maricopa
`Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (“For claims dismissed with prejudice and without leave
`to amend, we will not require that they be repled in a subsequent amended complaint to preserve
`them for appeal.”). Third, because Plaintiff need not re-plead the claims that were dismissed with
`prejudice in the October 1 Order, she has ample space to amend the claims that were dismissed with
`leave to amend on the specific grounds the Court permitted. Fourth, Plaintiff seeks this relief just
`one week before the deadline to file her 5AC. “I would write a shorter complaint, but I don’t have
`the time,” she appears to argue. To encourage Plaintiff to draft a crisper and clearer amended
`pleading, the Court should deny Plaintiff’s request to expand the page limitation beyond what it
`has already found is the most that could be appropriate in this kind of case.
`III.
`CONCLUSION
`Apple respectfully requests that the Court deny Plaintiff’s “Emergency Administrative
`Motion” in its entirety.
`Dated: October 25, 2024
`
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`
`By: /s/ Melinda S. Riechert
`MELINDA S. RIECHERT
`Attorneys for Defendant
`APPLE INC.
`
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`DEF.’S OPP. TO PL.’S “EMERGENCY
`ADMINISTRATIVE MOTION” (DKT. 115)
`[23-CV-4597-EMC]
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