Case 3:23-cv-04597-EMC Document 137 Filed 11/19/24 Page 1 of 4
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`ASHLEY M GJOVIK,
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`Plaintiff,
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`v.
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`APPLE INC.,
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`Defendant.
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`Case No. 23-cv-04597-EMC
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`ORDER DENYING DEFENDANT’S
`MOTION TO DISMISS; AND FINDING
`DEFENDANT’S MOTION TO
`SHORTEN TIME MOOT
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`Docket Nos. 131-32
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`Currently pending before the Court is Apple’s motion for an involuntary dismissal
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`pursuant to Federal Rule of Civil Procedure 41(b). Rule 41(b) provides that, “[if] the plaintiff fails
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`to prosecute or to complete with these rules or a court order, a defendant may move to dismiss the
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`action or any claim against it.” Fed. R. Civ. P. 41(b) (also providing that a dismissal under
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`“subdivision (b) . . . operates as an adjudication on the merits” “[u]nless the dismissal order states
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`otherwise”). Apple argues that involuntary dismissal is appropriate because Ms. Gjovik has failed
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`to comply with this Court’s orders – specifically, (1) she failed to timely file her fifth amended
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`complaint (“5AC”) and (2) the length of the 5AC exceeds 75 pages, which is the limit that the
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`Court placed on the amended pleading. See Docket No. 112 (Order at 41); Docket No. 123 (Order
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`at 3).
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`The Court agrees with Apple that Ms. Gjovik has failed to comply with its orders. First,
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`the 5AC was due on November 5, 2024. See Docket No. 123 (Order at 1-2). Ms. Gjovik had five
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`weeks to file the pleading. Initially, the Court gave her four weeks to amend but, subsequently,
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`gave her an extension of one additional week.
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`During those five weeks, Ms. Gjovik made several filings with this Court as well as with
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`Case 3:23-cv-04597-EMC Document 137 Filed 11/19/24 Page 2 of 4
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`the Ninth Circuit. See, e.g., Docket Nos. 115, 117 (motions filed with this Court); Docket Nos.
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`114, 125 (filings made with the Ninth Circuit). However, she did not file her 5AC on November
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`5; nor did she ask this Court for an extension of time beyond November 5.
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`Instead, on November 6, 2024, at about 10:00 a.m., Ms. Gjovik filed a notice, in which she
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`(1) “apologize[d] for the delay” in filing the 5AC; (2) attributed the delay to PTSD and anxiety
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`symptoms1; and (3) “committed to filing the 5AC by midnight.” Docket No. 127 (notice).
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`Although Ms. Gjovik did not file the 5AC by midnight as promised, she did file the pleading at
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`about 7:30 a.m. See Docket No. 128 (5AC). Thus, altogether, the 5AC was untimely filed by
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`more than a day.
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`Second, the 5AC is not limited to 75 pages in length as previously ordered by the Court.
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`To be sure, as a facial matter, the pleading appears to be only 74 pages. However, as Apple points
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`out, Ms. Gjovik manipulated the formatting on the pleading to achieve this result – i.e., she
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`circumvented the page limit by including 31 lines of text per page (instead of 28 as required by
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`Civil Local Rule 3-4(c)(2)) and narrowing page margins (i.e., by omitting numbered lines, which
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`is the practice in this District and which is consistent with Civil Local Rule 3-4(c)(1)). Apple
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`estimates that, without manipulation, the 5AC would be approximately 80 pages of text. See Mot.
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`at 4.
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`In her papers, Ms. Gjovik does not dispute that her 5AC has more lines of text per page
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`than permitted; nor does she dispute that the margins were narrowed (including through the
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`sacrifice of the use of numbered lines). She argues, however, that any formatting changes were
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`not done in bad faith to evade page limits. See Opp’n at 4. The Court rejects this argument and
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`finds that the formatting changes were intentionally made and in bad faith. Ms. Gjovik claims that
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`she began to make new formatting changes beginning in July 2024 – i.e., well before the Court
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`allowed her to file a 5AC. See Opp’n at 4 (claiming to be “following the Typography for Lawyers
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`1 See Docket No. 127 (notice) (referring to (a) “PTSD and anxiety symptoms, which have
`worsened significantly while having to remove critical parts of my lawsuit [which] represent
`events in my life which previously caused my severe emotion[al] distress when they occurred
`originally” and (b) “PTSD symptoms due [to] the requirement of publicly detailing my IIED
`claims while being harassed by the Defendant and certain non-parties about those events”).
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`Case 3:23-cv-04597-EMC Document 137 Filed 11/19/24 Page 3 of 4
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`guidebook and typeface”). But even if Ms. Gjovik made some formatting changes starting in July
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`2024, see Opp’n at 5-6 (providing examples), those changes did not include 31 lines of text per
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`page. Furthermore, in instances in which she did not use numbered lines, the margins did not
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`appear to be narrowed as they have been with the 5AC.2
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`The question for the Court, however, is whether Ms. Gjovik’s violations of its orders
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`warrant a dismissal. To be clear, Apple asks only for an involuntary dismissal of claims that the
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`Court allowed Ms. Gjovik to amend in her 5AC. See Mot. at 4 (arguing that “[t]he Court should
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`dismiss the 5AC with prejudice, leaving only the claims not dismissed in the 4AC”). The Court
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`holds that this relief is not appropriate.
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`The fact that Ms. Gjovik filed her complaint late is of less consequence, particularly as Ms.
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`Gjovik notified the Court on November 6, 2024, that she intended to file the 5AC and then did so
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`the following day.3 See Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 890 (9th Cir.
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`2019) (stating that, “‘[w]hen a district court dismisses an action because the plaintiff has not filed
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`an amended complaint after being given leave to do so and has not notified the court of his
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`intention not to file an amended complaint, we may deem the dismissal to be for failure to comply
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`with a court order based on Federal Rule of Civil Procedure 41(b)’”) (emphasis added). The more
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`problematic conduct by Ms. Gjovik was her failure to comply with the Court’s limit on page
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`length for her amended pleading.
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`In assessing whether to dismiss under Rule 41(b), a court typically considers the following
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`five factors: “‘(1) the public's interest in expeditious resolution of litigation; (2) the court's need to
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`manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring
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`disposition of cases on their merits; and (5) the availability of less drastic alternatives.’” Id. (also
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`2 Ms. Gjovik criticizes Apple for engaging in improper formatting conduct in other cases. Those
`other cases are irrelevant. Ms. Gjovik has not pointed to any improper formatting conduct by
`Apple in this case.
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` To be clear, the Court does not condone the untimely filing, especially as it had already given her
`a one-week extension to file the 5AC. See Docket No. 123 (Order at 2). Ms. Gjovik risks being
`sanctioned if she continues to make late filings. While a filing that is not unduly late may not be
`so prejudicial to the opposing party as to warrant severe sanctions, a pattern or practice of late
`filings is a different matter. Apple suggests that Ms. Gjovik has already engaged in such a pattern
`or practice. See Reply at 1. However, Ms. Gjovik is now on notice that there are consequences.
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`Case 3:23-cv-04597-EMC Document 137 Filed 11/19/24 Page 4 of 4
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`referred to as the Yourish factors). Although some of these factors may weigh in Apple’s favor,
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`the Court concludes that, overall, the dismissal sought by Apple is too extreme a sanction – at least
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`at this juncture of the proceedings. That being said, a sanction of some kind is warranted.
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`Specifically, the Court sanctions Ms. Gjovik by striking the 5AC at Docket No. 128 from the
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`record. The Court shall permit Ms. Gjovik to file a new 5AC by November 26, 2024; that
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`pleading must comply with the Court’s prior orders regarding the scope of the permitted
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`amendment and is still subject to the 75-page limit. If Ms. Gjovik does not timely file the 5AC
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`and/or files a pleading that subverts the 75-page limit imposed by the Court, she risks the
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`imposition of a more severe sanction – including the severest sanction of dismissal. After Ms.
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`Gjovik files the new 5AC, Apple shall then until January 7, 2024, to file its response to the
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`amended pleading.
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`Accordingly, for the reasons stated above, the Court DENIES Apple’s motion for
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`involuntary dismissal. However, this ruling does not preclude Apple from moving for such relief
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`in the future, if and when appropriate. In light of the Court’s ruling herein, Apple’s motion for
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`shortened time is moot.
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`This order disposes of Docket Nos. 131 and 132.
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`IT IS SO ORDERED.
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`Dated: November 19, 2024
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`______________________________________
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`EDWARD M. CHEN
`United States District Judge
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