Case 3:23-cv-04597-EMC Document 131 Filed 11/13/24 Page 1 of 10
`
`(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 MOTION
`TO DISMISS PLAINTIFF ASHLEY
`GJOVIK’S FIFTH AMENDED
`COMPLAINT PURSUANT TO FRCP
`41(B)
`Judge: Honorable Edward M. Chen
`Dept: Courtroom 5, 17th Floor
`Date: January 2, 2025
`Time: 1:30 p.m.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`DEF.’S MOTION TO DISMISS
`PURSUANT TO FRCP 41(B)
`[23-CV-4597-EMC]
`
`

`

`Case 3:23-cv-04597-EMC Document 131 Filed 11/13/24 Page 2 of 10
`
`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.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`DEF.’S MOTION TO DISMISS
`PURSUANT TO FRCP 41(B)
`[23-CV-4597-EMC]
`
`

`

`Case 3:23-cv-04597-EMC Document 131 Filed 11/13/24 Page 3 of 10
`
`NOTICE OF MOTION AND MOTION TO DISMISS
`TO PLAINTIFF ASHLEY GJOVIK: PLEASE TAKE NOTICE that on January 2, 2025,
`at 1:30 p.m. in Courtroom 5, on the 17th Floor of the above-titled Court, located at 450 Golden
`Gate Avenue, San Francisco, CA 94102, Defendant Apple Inc. will move the Court for an Order
`dismissing with prejudice the Fifth Amended Complaint, leaving only the claims not dismissed in
`the Fourth Amended Complaint1, on the grounds that Plaintiff failed to comply with the Court’s
`October 1, 2024 order (Dkt. 112) requiring Plaintiff to file a Fifth Amended Complaint limited to
`75 pages and its subsequent October 25, 2024 order (Dkt. 123) requiring Plaintiff to do so by
`November 5, 2024.
`Dismissal is proper under Rule 41(b) because Plaintiff failed to comply with the Court’s
`October 1, 2024 and October 25, 2024 orders. This Motion is based on this Notice of Motion, the
`accompanying Memorandum of Points and Authorities, the complete pleadings and records on file,
`and other evidence and arguments as may be presented at the hearing on this Motion.
`MEMORANDUM OF POINTS AND AUTHORITIES
`Pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, Defendant Apple Inc. moves
`to dismiss Plaintiff Ashley Gjovik’s Fifth Amended Complaint (“5AC”). Plaintiff failed to comply
`with the Court’s October 1, 2024 order (Dkt. 112) requiring Plaintiff to file a 5AC limited to 75
`
`1 Per the Court’s October 1, 2024 Order (see Dkt. 112 at 38-41), the only claims not dismissed in
`the Fourth Amended Complaint are:
`1) Count I – claim for wrongful discharge in violation of public policy;
`2) Count II – claim for violation of California Labor Code § 1102.5, but only with respect to
`(a) “complaints about (1) violations of the anti-retaliation provisions of environmental
`laws, specifically, 42 U.S.C. §§ 9610 and 7622 and 15 U.S.C. 2622; (2) violation of §
`8(a)(1) of the NLRA; (3) violation of California General Industry Safety Order 5194; (4)
`violation of 29 U.S.C. § 660; (5) violation of the California Constitution’s right to privacy
`(but not related to Gobbler); and (6) violation of 42 U.S.C. § 2000e and California
`Government Code § 12920” (Dkt. 112 at 38-39); and (b) claimed damages other than civil
`penalties;
`3) Count III – claim for violation of California Labor Code § 6310;
`4) Count V – claim for violation of California Labor Code § 98.6, but only with respect to
`claimed damages other than civil penalties;
`5) Count VI – claim for violation of California Labor Code § 232.5, but only with respect to
`the allegations in Paragraph 182 of the Fourth Amended Complaint; and
`6) Count VII – claim for violation of California Labor Code § 96(k).
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`- 1 -
`
`DEF.’S MOTION TO DISMISS
`PURSUANT TO FRCP 41(B)
`[23-CV-4597-EMC]
`
`

`

`Case 3:23-cv-04597-EMC Document 131 Filed 11/13/24 Page 4 of 10
`
`pages and its subsequent October 25, 2024 order (Dkt. 123) requiring Plaintiff to do so by
`November 5, 2024.
`The 5AC was filed two days late on November 7, 2024. And although each of Plaintiff’s
`four prior complaints had been filed on pleading paper consistent with the local rules, Plaintiff
`submitted her 5AC in an entirely different format. The reason is transparent—to improperly
`circumvent the October 1 Order by submitting more than 75 pages of allegations and attempting to
`disguise that malfeasance with a formatting sleight of hand.
`Because Plaintiff did not comply with the Court’s October 1 and October 25 Orders—and
`because Plaintiff has repeatedly submitted filings late, has previously filed an improper declaration
`in an attempt to circumvent page limitations, and has otherwise ignored the rules of this Court—
`the Court should dismiss the 5AC with prejudice, leaving only the claims not dismissed in the 4AC.
`Thus, the Court should dismiss with prejudice the claims asserted in the 5AC that the Court
`previously dismissed with leave to amend in its October 1 Order, and order the case to proceed on
`only those claims in the Fourth Amended Complaint (“4AC”) that Apple did not move to dismiss
`or that the Court permitted to proceed.2
`I.
`RELEVANT PROCEDURAL HISTORY
`On October 1, 2024, the Court granted in part and denied in part Apple’s motion to dismiss
`the 4AC and required that a 5AC “shall be filed by October 29, 2024, and shall be limited to
`seventy-five (75) pages in length.” 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.
`On October 22, 2024—three weeks after she filed the notice of appeal and just one week
`before the deadline to file the 5AC—Plaintiff filed a motion to stay all proceedings in this Court
`pending her (improper) intervening appeal to the Ninth Circuit. See Dkt. 117 (the “Motion to Stay”).
`
`2 In filing this motion, Apple preserves its right to file a motion pursuant to Rule 12(b)(6) should
`the Court allow the 5AC to go forward. See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th
`Cir. 2004) (“The difference between a dismissal under Rule 12(b)(6) and one under Rule 41(b) is
`not merely formal. For one thing, a Rule 41(b) dismissal is deemed a sanction for disobedience,
`while a Rule 12(b)(6) dismissal carries no such stigma … ”); Fed. R. Civ. P. 12(b) (outlining
`motions permitted in responsive pleading to assert enumerated defenses).
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`- 2 -
`
`DEF.’S MOTION TO DISMISS
`PURSUANT TO FRCP 41(B)
`[23-CV-4597-EMC]
`
`

`

`Case 3:23-cv-04597-EMC Document 131 Filed 11/13/24 Page 5 of 10
`
`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 Stay. 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 by October
`29, 2024. See id. (the “Motion to Exceed Page Limitation”).
`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. In a one-page order issued on
`October 25, 2024, the Ninth Circuit dismissed Plaintiff’s appeal, relying on its own review of the
`record, and dismissed all pending motions as moot. Gjovik v. Apple Inc., No. 24-6058, Dkt. 7.1.
`That day, Plaintiff filed with the Ninth Circuit a motion to reconsider the dismissal of the appeal.
`Gjovik v. Apple Inc., No. 24-6058, Dkt. 8.1. The Ninth Circuit has not invited any response from
`Apple at the time of this filing.
`On October 25, 2024, the Court issued an order (the “October 25 Order”) denying the
`Motion to Change Time. Dkt. 123 at 2 (“Because it is unlikely that Plaintiff’s appeal is proper, an
`extension of time for Plaintiff to file an amended complaint is delay that is unwarranted.”).
`Notwithstanding, the Court extended the deadline to file the 5AC to November 5, 2024. Id. The
`Court explained that “[m]ore time is not warranted given that the Court already gave Plaintiff four
`weeks to amend and Plaintiff could have moved for relief earlier.” Id. The Court also denied the
`Motion to Exceed Page Limitation, reiterating that “this is not the kind of case that warrants a
`pleading of that length.” Id. at 3 (quoting the Court’s January 30, 2024 order dismissing Plaintiff’s
`Second Amended Complaint [Dkt. 43 at 3]). The Court also reminded her that her 5AC must be “a
`short and plain statement” in compliance with Rule 8. Id. at 3-4.
`On November 6, 2024, Plaintiff filed a “Notice of Intent to File 5AC on Nov. 6 2024.” Dkt.
`127 at 2. Plaintiff did not follow through with her intent. Rather, on November 7, 2024, Plaintiff
`filed her 5AC, two days after the deadline and without requesting an extension prior to the deadline.
`Dkt. 128. This is not the first time that Plaintiff has failed to file on time. On May 20, 2024, the
`DEF.’S MOTION TO DISMISS
`PURSUANT TO FRCP 41(B)
`[23-CV-4597-EMC]
`
`- 3 -
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 3:23-cv-04597-EMC Document 131 Filed 11/13/24 Page 6 of 10
`
`Court ordered Plaintiff to file her 4AC by June 17, 2024. Dkt. 73. Plaintiff did not file her 4AC
`until June 18, 2024. Dkt. 76. Plaintiff also filed her Opposition to Apple’s Motion to Dismiss the
`4AC two days late on July 31, 2024. Dkt. 84.
`The 5AC contains well over 80 pages of text (though, on its face, it is 74 pages in length),
`as it has 31 lines per page (despite Civ. L.R. 3-4(c)(2)’s requirement of “no more than 28 lines per
`page”) and narrowed margins at the expense of numbered lines (even though it is practice in this
`District to include numbered lines). Dkt. 128. Each of Plaintiff’s prior five complaints were
`submitted on compliant pleading paper (see Dkt. 1, 17, 32, 47, 76); her choice to deviate from prior
`practice now is a transparent attempt to disguise that she was ignoring the Court-ordered page
`limits. This is not the first instance of Plaintiff attempting to circumvent page limits. For example,
`Plaintiff filed a declaration in support of her opposition to Apple’s motion to dismiss the 4AC (Dkt.
`87), and the Court found that several of the exhibits “arguably reflect an attempt on the part of Ms.
`Gjovik to get around the page limits on briefing.” Dkt. 112 at 5, n. 2.
`II.
`ARGUMENT
`The Court should dismiss the 5AC with prejudice, leaving only the claims not dismissed in
`the 4AC. Thus, the Court should dismiss with prejudice the claims asserted in the 5AC that the
`Court previously dismissed with leave to amend in its October 1 Order, and order the case to
`proceed on only those claims in the 4AC that Apple did not move to dismiss or that the Court
`permitted to proceed. See Fed. R. Civ. Pro. 41(b) (“If the plaintiff fails to prosecute or to comply
`with these rules or a court order, a defendant may move to dismiss the action or any claim against
`it. Unless the dismissal order states otherwise, a dismissal under [Rule 41(b)] operates as an
`adjudication on the merits.”); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (“Failure to follow
`a district court’s local rules is a proper ground for dismissal.”).
`In determining whether to dismiss a case for failure to comply with a court order, a district
`court must weigh five factors: “(1) the public’s interest in expeditious resolution of litigation; (2)
`the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public
`policy favoring disposition of cases on their merits; and (5) the availability of less drastic
`alternatives.” Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (weighing the
`DEF.’S MOTION TO DISMISS
`PURSUANT TO FRCP 41(B)
`[23-CV-4597-EMC]
`
`- 4 -
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 3:23-cv-04597-EMC Document 131 Filed 11/13/24 Page 7 of 10
`
`factors and concluding that district court did not abuse its discretion in dismissing plaintiffs’ case
`for failing to amend in a timely fashion). Dismissal is proper “where at least four factors support
`dismissal, ... or where at least three factors ‘strongly’ support dismissal.” Id. “Although it is
`preferred, it is not required that the district court make explicit findings in order to show that it has
`considered these factors[.]” Id. (quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992), as
`amended (May 22, 1992)).
`Here, Plaintiff failed to comply with the Court’s October 1 and October 25 Orders setting a
`deadline and page limit for the 5AC; on the contrary, she actively flouted them and tried to conceal
`having done so.
`First, Plaintiff did not abide by the Court’s October 25 Order requiring that Plaintiff file her
`5AC by November 5, 2024 nor did she request an extension prior to that deadline and instead filed
`her 5AC two days late. This alone is grounds for dismissal. See Monegas v. City & Cnty. of San
`Francisco Dep’t of Pub. Health, No. 22-CV-04633-JSW, 2023 WL 5671933, at *2 (N.D. Cal. Sept.
`1, 2023) (pursuant to Rule 41(b), dismissing with prejudice pro se plaintiff’s amended complaint
`filed two days after the deadline set by the Court); Mandell v. Am. Exp. Travel Related Servs. Co.,
`933 F.2d 1014 (9th Cir. 1991) (affirming dismissal of pro se plaintiff’s amended complaint filed
`three days after the court-ordered deadline).
`Second, the 5AC violates the Court’s October 1 Order, which required that the 5AC “shall
`be limited to seventy-five (75) pages in length.” Dkt. 112. Civ. L.R. 3-4(c)(2) requires that papers
`presented for filing contain “no more than 28 lines per page.” Plaintiff’s 5AC, however, contains
`31 lines per page. See, e.g., Dkt. 76 at 8. With approximately 3 “extra” lines on each of 5AC’s 74
`pages, the 5AC has approximately 222 “extra” lines, which equals about 8 pages of text. In effect,
`the 5AC is about 82 pages worth of text. And Plaintiff attempted to conceal that this was so, by
`submitting a filing that appeared to comply with the page limit but only because she had
`manufactured a non-compliant format that would convey that appearance. Moreover, the 5AC is
`missing numbered lines, despite the practice in this District to include them. See Powerteq, LLC v.
`Moton, No. C-15-2626 MMC, 2016 WL 80558, at *1 (N.D. Cal. Jan. 7, 2016) (“Although the Civil
`Local Rules of this District only expressly require papers ‘presented for manual filing’ to have
`DEF.’S MOTION TO DISMISS
`PURSUANT TO FRCP 41(B)
`[23-CV-4597-EMC]
`
`- 5 -
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 3:23-cv-04597-EMC Document 131 Filed 11/13/24 Page 8 of 10
`
`‘numbered lines,’ see Civil L.R. 3-4(c)(1), it is the practice in this District that all papers
`electronically filed also have numbered lines.”). Plaintiff included numbered lines in all prior filings
`(see, e.g., Dkt. 127, filed one day prior), which suggests that Plaintiff omitted them in the 5AC to
`narrow the margins and get around the Court-ordered page limit.
`This malfeasance—particularly from a plaintiff who graduated from law school, whom the
`Court said it was “confident” could “draft a complaint that contains the necessary details” within a
`75-page limit (Dkt. 46 at 3), and who the Court has repeatedly reminded is subject to Rule 11 (Dkt.
`73 at 49; Dkt. 112 at 31, 40)—is clear grounds for dismissal with prejudice. See Mostowfi v. I2
`Telecom Int’l Inc., No. C-03-5784 VRW, 2006 WL 8443121, at *9 (N.D. Cal. Mar. 27, 2006), aff’d,
`269 F. App’x 621 (9th Cir. 2008) (dismissing amended complaint with prejudice pursuant to Rule
`41(b) where altered format between pleadings “suggests that plaintiffs’ counsel deliberately
`increased the lines per page so that plaintiffs’ factual allegations would fit within the 25-page
`limit”). Plaintiff’s failure to comply with, and brazen disregard of, the Court’s October 1 Order
`warrants the sanction of dismissal with prejudice.
`The factors set out in Yourish weigh in favor of dismissal of the 5AC. First, the public’s
`interest in expeditious resolution of litigation strongly favors dismissal. See Yourish v. California
`Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (the public’s interest in expeditious resolution of
`litigation strongly favors dismissal where plaintiff failed to timely file amended complaint).
`Notwithstanding Plaintiff’s delay in filing the Motion to Change Time, the Court granted Plaintiff
`a week extension to file the 5AC. Dkt. 123 at 2. The Court was clear that “[m]ore time is not
`warranted given that the Court already gave Plaintiff four weeks to amend and Plaintiff could have
`moved for relief earlier.” Id. Nonetheless, Plaintiff filed her 5AC two days late. Dkt. 128. Moreover,
`Plaintiff clearly attempted to circumvent the Court-ordered page limit, and the filing of a compliant
`Sixth Amended Complaint would only further delay this litigation.
`Second, the Court’s need to manage its docket strongly favors dismissal. See Yourish, 191
`F.3d at 990 (the court’s need to manage its docket strongly favored dismissal where the court gave
`plaintiffs additional time to file amended complaint and plaintiffs waited until three days after
`deadline to file motion seeking clarification of grounds for dismissal). As discussed above, Plaintiff
`DEF.’S MOTION TO DISMISS
`PURSUANT TO FRCP 41(B)
`[23-CV-4597-EMC]
`
`- 6 -
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 3:23-cv-04597-EMC Document 131 Filed 11/13/24 Page 9 of 10
`
`filed her 5AC two days late despite being granted a week-long extension (see Dkt. 123 at 2; Dkt.
`128), and Plaintiff did not request a further extension prior to the November 5, 2024 deadline.
`Plaintiff’s attempt to control the pace of the docket is improper. See Yourish, 191 F.3d at 990.
`Third, the risk of prejudice to Apple strongly favors dismissal. See id. at 991 (the risk of
`prejudice to defendant strongly favored dismissal where plaintiffs had a weak excuse for waiting
`until three days after the deadline to seek clarification of grounds for dismissal). “[T]he risk of
`prejudice to the defendant is related to the plaintiff’s reason for defaulting in failing to timely
`amend.” Id. Here, after the November 5, 2024 deadline had already passed, Plaintiff filed a notice
`of intent to file the 5AC, claiming “[m]y revisions have been delayed, following the court’s order
`last week, due to my PTSD and anxiety symptoms, which have worsened significantly, while
`having to remove critical parts of my lawsuit….” Dkt. 127. Plaintiff does not have a good excuse
`for her untimely filing. The Court’s October 25 Order made clear that she did “not need to replead
`dismissed claims” in her 5AC. See Dkt. 123 at 3. Nonetheless, Plaintiff did not raise this excuse
`until after the 5AC was due. Moreover, Plaintiff’s prior compliance with the formatting
`requirements implies that there is no excuse for Plaintiff’s failure to comply in this instance and
`instead raises the inference that she intentionally violated the requirements in order to sidestep the
`Court-imposed page limit.
`Fourth, the availability of less drastic alternatives strongly favors dismissal of the claims
`that were not dismissed in the Court’s October 1 Order. While permitting Plaintiff to file a Sixth
`Amended Complaint compliant with Civ. L.R. 3-4 would be less drastic, it is not a suitable
`alternative because it would effectively give Plaintiff a second extension to file an amended
`complaint following the Court’s October 1, 2024 partial dismissal of the 4AC, even though the
`Court has already found that “[m]ore time is not warranted.” Dkt. 123 at 2. As a result, Plaintiff
`would be unfairly rewarded for violating the Court’s October 1 and October 25 Orders. Gutierrez
`v. City of Colton, No. CV 07-4934 ODW (SSX), 2008 WL 11410020, at *4 (C.D. Cal. June 9, 2008)
`(finding no less drastic alternatives because “granting an extension of time would improperly
`reward Plaintiffs for their delay”).
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`- 7 -
`
`DEF.’S MOTION TO DISMISS
`PURSUANT TO FRCP 41(B)
`[23-CV-4597-EMC]
`
`

`

`Case 3:23-cv-04597-EMC Document 131 Filed 11/13/24 Page 10 of 10
`
`Finally, while “the public policy favoring disposition of cases on their merits will always
`weigh against dismissing a case” (see Hartmann v. Hanson, No. C 09-03227 WHA, 2010 WL
`1340704, at *3 (N.D. Cal. Apr. 2, 2010)), the remaining factors weigh heavily in favor of dismissal,
`and thus dismissal is appropriate. See Yourish, 191 F.3d at 990 (dismissal proper “where at least
`four factors support dismissal, ... or where at least three factors ‘strongly’ support dismissal”).
`Moreover, this factor does not weigh strongly against dismissing with prejudice the claims that the
`Court dismissed in its October 1 Order, given that Plaintiff has already had multiple opportunities
`to amend. Further, in its October 1 Order, the Court expressed doubts as to the merits of certain
`claims. See, e.g., Dkt. 112 at 31 (the Court “is extremely skeptical that Ms. Gjovik could, in good
`faith and in compliance with her Rule 11 obligations” plead element of IIED claim premised on
`alleged chemical exposure); id. at 37 (“The Court has strong concerns as to whether Ms. Gjovik
`can, in good faith, allege a basis for respondeat superior liability.”). Thus, this factor does not
`outweigh the other factors that strongly favor dismissal.
`III.
`CONCLUSION
`The 5AC—filed two days late after Plaintiff had already received a week-long extension
`and containing over 80 pages of text—does not comply with the Court’s October 1, 2024 and
`October 25, 2024 Orders, and consequently, Apple respectfully requests that the Court dismiss the
`5AC with prejudice, leaving only the claims not dismissed in the 4AC. Thus, the Court should
`dismiss with prejudice the claims asserted in the 5AC that the Court previously dismissed with
`leave to amend in its October 1 Order, and order the case to proceed on only those claims in the
`4AC that Apple did not move to dismiss or that the Court permitted to proceed.
`
`Dated: November 13, 2024
`
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`
`By: /s/ Melinda S. Riechert
`MELINDA S. RIECHERT
`Attorneys for Defendant
`APPLE INC.
`
`- 8 -
`
`DEF.’S MOTION TO DISMISS
`PURSUANT TO FRCP 41(B)
`[23-CV-4597-EMC]
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`