Case 3:23-cv-04597-EMC Document 136 Filed 11/19/24 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 REPLY IN
`SUPPORT OF ITS 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.
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`DEF.’S REPLY ISO MOTION TO DISMISS
`PURSUANT TO FRCP 41(B)
`[23-CV-4597-EMC]
`
`

`

`Case 3:23-cv-04597-EMC Document 136 Filed 11/19/24 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 REPLY ISO MOTION TO DISMISS
`PURSUANT TO FRCP 41(B)
`[23-CV-4597-EMC]
`
`

`

`Case 3:23-cv-04597-EMC Document 136 Filed 11/19/24 Page 3 of 5
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`Plaintiff Ashley Gjovik’s Opposition to Defendant Apple Inc.’s Rule 41(b) Motion to
`Dismiss and its Motion to Shorten Time to Hear the Rule 41(b) Motion—filed November 15, 2024,
`once again after the Court-ordered deadline—provides further support for dismissal of the Fifth
`Amended Complaint (“5AC”) under Rule 41(b) and reverting this case to the claims in the Fourth
`Amended Complaint (“4AC”) that were not previously dismissed.1 There is no question that
`Plaintiff violated the Court’s October 1 and October 25 Orders. Nowhere in her 15-page Opposition
`does Plaintiff contest that she failed to comply with the requirement of “no more than 28 lines per
`page” (Civ. L.R. 3-4(c)(2)). See Dkt. 134. Nor does she rebut Apple’s argument that as a result the
`5AC contains over 80 pages worth of text, in violation of the Court’s October 1 Order setting a 75-
`page limit. See id. Moreover, Plaintiff acknowledges that she failed to comply with the Court’s
`October 25 order requiring her to file her 5AC by November 5, 2024. See id. at 11-12. These are
`not mere technical errors, as Plaintiff appears to suggest; they are part of a pattern of conduct. This
`Court thus has clear grounds to dismiss the 5AC with prejudice, leaving only the claims not
`dismissed in the 4AC. See General Standing Order for Civil Cases at 1 (“Any failure to comply
`with any of the rules and orders may be deemed grounds for … dismissal …”).
`Despite Plaintiff’s failure to comply with the Court’s October 1 and October 25 Orders,
`Plaintiff insists that Rule 41(b) dismissal is not appropriate here because she “did note [sic] engage
`in willful or contumacious conduct.” Dkt. 134 at 5. The law cited by Plaintiff demonstrates
`otherwise. Plaintiff correctly explains that “willfulness or extreme dilatoriness may be inferred”
`from “repeated failures to comply[.]” Id. (citing, inter alia, Jones v. Thompson, 996 F.2d 261 (10th
`Cir. 1993)). And as Apple argued in its Rule 41(b) motion, Plaintiff has repeatedly failed to comply
`with the Court’s deadlines and page limits. See Dkt. 131 at 4-6.2 Plaintiff’s failure to timely file her
`Opposition to Apple’s Motion to Shorten Time is yet another instance of Plaintiff disregarding an
`order from this Court. “Given [P]laintiff’s pattern of repeatedly failing to meet deadlines and abide
`by court orders,” there is no “alternative sanction [that] will adequately encourage [P]laintiff to
`
`1 Apple provides this response within the timeline permitted by the Court per Dkt. 135.
`2 See, e.g., Dkt. 98 (denying Plaintiff’s motion to file sur-reply in support of opposition to motion
`to dismiss Fourth Amended Complaint where “the proposed sur-reply is more than seventy pages
`in length, exceeding the page lengths permitted for motions, oppositions, and reply”).
`DEF.’S REPLY ISO MOTION TO DISMISS
`PURSUANT TO FRCP 41(B)
`[23-CV-4597-EMC]
`
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`Case 3:23-cv-04597-EMC Document 136 Filed 11/19/24 Page 4 of 5
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`responsibly prosecute [her] case.” Crosby v. Cnty. of Mono, No. CIV S-2:11-1458-KJM-, 2012 WL
`2160951, at *3 (E.D. Cal. June 13, 2012).
`Plaintiff also fails to provide any reason to doubt that she deliberately departed from the
`formatting that she had used in the 4AC, adjusting the spacing of lines and omitting line numbers,
`in an effort to squeeze extra text onto the pages of her 5AC as an end-run around the court-ordered
`page limit (and to attempt to conceal that she had done so). The court-ordered page limit would be
`illusory if Plaintiff were permitted to flout it through formatting sleight of hand. Plaintiff claims
`she changed the formatting of her filings in July 2024 and provides examples of filings from July-
`September 2024. Dkt. 134 at 7-8. It is unclear what Plaintiff is trying to show with each of these
`examples because none have more than 28 lines per page, exclusive of footnotes, which is
`permissible. See id.3 Indeed, Plaintiff complied with the no-more-than-28-lines-per-page
`requirement until the 5AC—which she filed after the Court had rejected her plea for additional
`pages and insisted she limit her filing to 75 pages. Plaintiff offers no explanation as to why the 5AC
`has 31 lines per page; on the contrary, “this alteration suggests that [she] deliberately increased the
`lines per page so that [her] factual allegations would fit within the [75]-page limit.” 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). Plaintiff’s failure to acknowledge that she added lines and
`omitted line numbers as an end-run around the Court’s order further confirms Plaintiff’s bad faith.
`Plaintiff attempts to deflect from her own failure to comply with the Court’s orders by
`pointing the finger at Apple and, shockingly, the Court itself. See Dkt. 134 at 9-13. First, Plaintiff
`claims Apple has been warned for “intentional and defiant formatting far worse then [sic] anything
`Plaintiff did here,” citing to a case where Apple was criticized for putting too many footnotes in a
`brief. See Dkt. 134 at 9. Whataboutism4, however, is no cure for her own failure to comply with a
`
`3 Plaintiff claims that she changed the format of her filings in July 2024 based on the Typography
`for Lawyers guidebook. See Dkt. 134 at 6. That guidebook explains that court rules about
`typography exist
`to “help[] ensure fairness
`to
`the parties.” See id. at 18 (citing
`https://typographyforlawyers.com/). Plaintiff’s failure to abide by such court rules—despite
`understanding the purpose for them as of July 2024—is further evidence of contumacious conduct.
`4 See United States v. Jones, No. 20-10090, 2021 WL 5984901, at *4, n.3 (9th Cir. Dec. 16, 2021)
`(“There’s actually a relatively new term for this rhetorical device of changing the subject: ‘In
`response to an accusation, the purveyor of “whataboutism” deflects by arguing that someone else
`DEF.’S REPLY ISO MOTION TO DISMISS
`- 2 -
`PURSUANT TO FRCP 41(B)
`[23-CV-4597-EMC]
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`Case 3:23-cv-04597-EMC Document 136 Filed 11/19/24 Page 5 of 5
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`court order. Second, Plaintiff suggests that the Court’s October 1 Order “substantially exceeded”
`the Federal Rules of Civil Procedure and thus the Court has no basis to dismiss her 5AC for
`violating that order. Id. at 12-13. Plaintiff’s position is contrary to the law, as this Court was well
`within its authority to limit the 5AC to 75 pages. See Chaidez v. Hubbard, 744 F. App'x 385, 386
`(9th Cir. 2018) (rejecting as meritless plaintiff’s contention that the district court erred by imposing
`page limit on amended complaint). In turn, this Court has the authority to dismiss the 5AC for
`violating that page limit. This is especially so because Plaintiff continues to insist that the Court
`lacks the authority to have imposed such a page limit, again highlighting her unwillingness to be
`held to the same standards as other litigants. See Harrell v. Hornbrook Cmty. Servs. Dist., No.
`214CV01595KJMGGH, 2017 WL 3493626, at *7 (E.D. Cal. Aug. 15, 2017), report and
`recommendation adopted, 2017 WL 6520701 (E.D. Cal. Sept. 29, 2017) (granting Rule 41(b)
`motion where plaintiff failed to abide by page limit and citing “contumacious conduct” in Barnes
`v. Tumlinson, 598 F. App’x 798 (5th Cir. 2015), where plaintiff complained that any page limit
`imposed by the court was arbitrary and not required by Rule 8).
`Apple respectfully requests that the Court 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 19, 2024
`
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`
`By: /s/ Melinda S. Riechert
`MELINDA S. RIECHERT
`Attorneys for Defendant
`APPLE INC.
`
`(such as the accuser) has also done something wrong. Whether the accusation holds up is irrelevant,
`relentless whataboutism is a way to justify and distract, not to make a genuine case.’”) (quoting
`Caroline Mala Corbin, The Unconstitutionality of Government Propaganda, 81 Ohio St. L.J. 815,
`827 (2020)).
`
`4136-0038-8181.6
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`- 3 -
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`DEF.’S REPLY ISO MOTION TO DISMISS
`PURSUANT TO FRCP 41(B)
`[23-CV-4597-EMC]
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