In The United States Court of Appeals For The Ninth Circuit

Case: 21-35165, 08/16/2021, ID: 12203074, DktEntry: 6, Page 1 of 24
IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
RIVKA SPIVAK, aka Rebecca Spivak, Case No. 21-35165
Plaintiff-Appellant, Appeal from

Case No. 2:20-cv-01480-MJP
v. Western District of Washington
GOOGLE LLC, a subsidiary of APPELLEES’ RULE 42.1 MOTION

Alphabet, Inc., and BRIAN TO DISMISS AND OPPOSITION
JOHNSRUD, TO APPELLANT’S MOTION FOR
EXTENSION OF TIME
Defendants-Appellees.
INTRODUCTION
Appellees Google LLC and Brian Johnsrud oppose appellant Rebecca
Spivak’s second, months’ long extension request. The Court already extended the
deadline for Ms. Spivak to file her opening brief by three months. She neither did
so nor asked for relief before the deadline passed. And when she acknowledged
she missed it days later, she raised none of the issues that she now offers to justify
another extension: “Aww, gee whiz. I guess I missed the deadline to file. I guess it
must be because I’m crazy, or because I wasn’t willing enough to commit to
perjure myself in asserting that I’m crazy. Oh well.” Exhibit A at p. 1 (emphases

added). She has since said that she wants to dismiss the appeal altogether. Exhibit
B at pp. 2-3; Exhibit C at p. 1.
Ms. Spivak’s attitude towards this appeal not only shows disrespect for the
Court’s scheduling orders, it continues to prejudice Appellees. Parties are entitled
to have the Court consider their positions and resolve disputes as quickly as
circumstances reasonably allow. Ms. Spivak filed this appeal on March 1, 2021.
Yet briefing has not even started and would not start until December, 2021 at the
earliest under her proposal, more than nine months later. Appellees have been
involved in litigation with Appellant for many, many years already. It is time to
bring this matter to an end.
MOTION TO DISMISS
Circuit Rule 42-1 allows the Court to dismiss an appeal “[w]hen an appellant
fails to . . . file a timely brief or otherwise comply with rules requiring processing
the appeal for hearing.” The Court routinely dismisses appeals for failure to
prosecute where, as here, the appellant misses the deadline to file her opening
brief. See Jimma v. Seattle Police Dep’t, No. 19-36114, 2021 WL 2660009 (9th
Cir. Jan. 13, 2021) (dismissed where appellant missed previously extended brief
deadline); Wilson v. Leigh L. Grp., P.C., No. 21-15136, 2021 WL 3168881 (9th
Cir. Apr. 28, 2021) (dismissed where appellant failed to file opening brief); Wilson
v. Cty. of Contra Costa, No. 20-16630, 2020 WL 8618121(9th Cir. Dec. 30, 2020)
(same); McClellon v. Wells Fargo Bank, N.A., No. 18-35737, 2019 WL 1087506
(9th Cir. Jan. 24, 2019) (same). That is true even for appeals involving pro se
parties. 1 Id. (each of these cases dismissed pro se appeals).
Here, Ms. Spivak did not just miss the deadline; she seems to have
consciously ignored it. She knew the deadline was approaching on July 18 when
she asked Appellees to agree to an extension. Exhibit A at p. 2. Appellees
declined. Id. Despite having two more weeks either to file her brief or seek
another extension, she did neither, though in the interim found time to email
counsel and others links to YouTube videos and Facebook pages. Exhibit D at pp.
1-2. And even after recognizing the deadline passed, Ms. Spivak did not
immediately seek relief from the Court: “Aww, gee whiz. I guess I missed the
deadline to file. . . . Oh well.” Exhibit A at p. 1. She waited another week to move
for an extension.
Since then, Ms. Spivak has said she would prefer to dismiss the appeal. On
August 16, she emailed appellees’ counsel an electronically signed copy of a
“Stipulated Motion to Dismiss Appeal.” Exhibit B; see also Cir. Rule 25-5(e)
1
Although Ms. Spivak is not represented by counsel, she is a law school graduate and inactive member of the State
Bar of California. See http://members.calbar.ca.gov/fal/Licensee/Detail/263866.
(“Electronic filings shall indicate each signatory by using an ‘s/’ in addition to the
typed name of . . . an unrepresented party.”). Counsel followed up with Ms.
Spivak to confirm her intent:
Counsel: Are you approving us to file this stipulated

dismissal, which would dismiss the appeal
with prejudice? As you know, that means
that you could not reopen it, and both the
appeal and the district court case would be
over.
Ms. Spivak: Yes. Go for it.

Exhibit C at p. 1 (emphasis added). But because Ms. Spivak is an unrepresented
party, Appellees offer the stipulation as evidence to support their motion—rather
than file and rely on the stipulation alone—out of an abundance of caution.
OPPOSITION TO MOTION FOR EXTENSION OF TIME
This is Ms. Spivak’s second request for more time to file her opening brief.
The Court granted her first motion in part, extending the original deadline by three
months to August 3. Now Ms. Spivak asks for four more months, again citing
health and family issues.
The Court may extend the briefing deadline for “good cause,” FRAP 26(b),
though “[m]ultiple motions for extension of time to file a brief are disfavored.” Cir.
Advisory Comm. Note to Rule 31-2.2. “[T]he Court may decline to grant relief if
a successive motion fails to demonstrate diligence and substantial need.” Id.

While Ms. Spivak provides slightly more detail about why she seeks more
time, she does not explain why she was not able to prepare her opening brief in the
six months that have already passed since she filed this appeal or, for example, how
a “short” hospital stay precluded her from filing on time. Nor does Ms. Spivak
give the Court any confidence that these issues will be resolved in the next four
months such that she will be able to prepare her brief, even with an extension. Nor
does she explain why she did not immediately move for an extension after she
apparently realized in July that she would not meet the August deadline.
Delaying the start of briefing until December will prejudice Appellees,
which have been involved in litigation with Appellant for many years already. The
allegations in this appeal trace back to proceedings started by Appellant in 2015
and dismissed in 2019. This lawsuit followed in 2020, and with Appellant’s
requested extension, briefing here would not close until early 2022. All of that
presumes that Ms. Spivak will actually file a brief—not seek yet another extension
when the time comes.
CONCLUSION
Ms. Spivak is not pursuing this appeal with the urgency that this Court’s
rules or scheduling orders require. Nor is she treating it with the seriousness that a
case before the Court deserves. And in any event, Ms. Spivak says she now wants
to dismiss it and conclude these proceedings.
For those reasons, the Court should deny Ms. Spivak’s motion for another
extension of time and instead dismiss the appeal with prejudice under Circuit Rule
42.1. Appellees do not oppose Ms. Spivak’s motion to seal.
DATED: August 16, 2021 MILLER NASH LLP
__________________________________
Kellen A. Hade, WSBA No. 44535
Katie Loberstein, WSBA No. 51091
Pier 70, 2801 Alaskan Way Ste. 300
Seattle, WA 98121-1128
Tel: (206) 624-8300
Fax: (206) 340-9599
Email: [email protected]
Email: [email protected]
Attorneys for Defendants-Appellees

DECLARATION
I, Kellen A. Hade, declare:
1. I am an attorney licensed to practice in the United States Court of
Appeals for the Ninth Circuit and employed by Miller Nash LLP, attorneys of
record for appellees Google LLC and Brian Johnsrud. I make this declaration from
personal knowledge and from my review of documents kept in the ordinary course
of my practice.
2. Attached as Exhibit A is a true and correct copy of an email thread
between appellant Rebecca Spivak, me and my colleague Katie Loberstein.
3. Attached as Exhibit B is a true and correct copy of an email I
received from appellant Rebecca Spivak, along with the document (Stipulated
Motion to Dismiss Appeal) attached to it.
4. Attached as Exhibit C is a true and correct copy of an email thread
between appellant Rebecca Spivak, me and my colleague Katie Loberstein.
5. Attached as Exhibit D is a true and correct copy of an email thread
between appellant Rebecca Spivak, me and several unrelated parties.

I declare under penalty of perjury that the foregoing is true and correct.
Executed on August 16, 2021 at Seattle, Washington.
_______________________________
KELLEN A. HADE
EXHIBIT A
Hade, Kellen A.
From: Rebecca Spivak <[email protected]>

Sent: Thursday, August 5, 2021 8:50 PM
To: Hade, Kellen A.; Loberstein, Katie
Subject: Re: Spivak v Google: Will you Agree to Further Extension?
I guess it must be because I’m crazy, or because I wasn’t willing enough to commit to perjure myself in asserting that I’m
crazy.
Oh well.
Date: Thursday, August 5, 2021 at 8:47 PM
To: Hade, Kellen A. <[email protected]>, Loberstein, Katie <[email protected]>
Aww, gee whiz. I guess I missed the deadline to file.
From: Hade, Kellen A. <[email protected]>
Date: Friday, July 23, 2021 at 1:00 PM
To: Rebecca Spivak <[email protected]>, Loberstein, Katie <[email protected]>
Subject: RE: Spivak v Google: Will you Agree to Further Extension?
Apologies Rebecca—the delay is on me and was unintentional. Sorry to keep you waiting. We spoke to our clients and
they’re not able to agree to another extension.
Best,
Kellen
Kellen A. Hade
Partner
Miller Nash LLP
Pier 70 | 2801 Alaskan Way, Ste 300 | Seattle, WA 98121
Direct: 206.777.7411 | Cell: 206.724.1800 | Office: 206.624.8300
Email | Bio | Insights | Website
Our attorneys regularly offer insights to address the challenges faced by our clients. To visit the Miller Nash
industry‐focused blog overview page on our updated website: please click this link.
Sent: Thursday, July 22, 2021 11:24 PM
To: Hade, Kellen A. <[email protected]>; Loberstein, Katie <[email protected]>
Hi Kellen,
1
Since I emailed you on Sunday and it is now Thursday late night, I’m interpreting the lack of response as an affirmative
no. I’m not reading anything else into it and have not intent to interpret the lack of response in any other way.
If this is not your intent, let me know before EOD Friday.
Date: Monday, July 19, 2021 at 1:26 PM
Subject: RE: Spivak v Google: Will you Agree to Further Extension?
Hi Rebecca:
Thanks for the email. I will talk about this with Google and Brian and circle back.
Take care of yourself,
Kellen
Kellen A. Hade
Partner
Miller Nash LLP
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
CONFIDENTIALITY NOTICE: This e‐mail message may contain confidential or privileged information. If you have received
this message by mistake, please do not review, disclose, copy, or distribute the e‐mail. Instead, please notify us
immediately by replying to this message or telephoning us. Thank you.
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
Sent: Sunday, July 18, 2021 3:17 PM
Subject: Spivak v Google: Will you Agree to Further Extension?
Hi Kellen,
I hope you are well and enjoying the Summer.
I believe that as of now, I have a deadline for an appellate brief in early August.
I have not been able to secure a lawyer to represent me in this case, as my attention has been elsewhere.
My children were removed by CPS from my home in February of this year over concerns about my mental health. I
submitted to further evaluations, which led to a number of diagnoses that caused CPS to keep the children in Foster
Care for the past 5 months. (I do not believe that these diagnoses weaken my claims regarding the discrimination I
experienced during my Google employment. In fact, I believe, among other things, that they could show injury that I
previously was unaware of).
2
I have been through treatment, medication changes, and so on, but I still don’t have my children back. Right now there
MAY be a dependency trial in August, but even that is not a given, because the Superior Courts are backed up. My
children and I are hurting a great deal over the separation. It’s the only thing I can think of.
I don’t see how I can get an appellate brief in by the deadline. My focus has to be on my mental health and bringing my
children safely back home.
Would you agree to further extension of my deadline, perhaps to my original request of a 6 month total
extension? What would it take to convince you that there is good‐faith justification for it? Some of the information is
quite sensitive, so I would be tempted to submit it in camera to the judge. However, if we could agree to some level of
confidentiality or restrictions on how the information might be used, I would be more willing to try to share/work with
you to see if we could agree on an extension without involving the court in a contested request.
Please let me know your thoughts.
Best Regards,
Rebecca
3
EXHIBIT B
Hade, Kellen A.

Sent: Monday, August 16, 2021 12:26 PM
Subject: stipulation
Attachments: Stipulated Motion to Dismiss Appeal[52].docx
See attached
1
IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
RIVKA SPIVAK, aka Rebecca Spivak, Case No. 21-35165
Plaintiff-Appellant, Appeal from

Case No. 2:20-cv-01480-MJP
v. Western District of Washington
GOOGLE LLC, a subsidiary of STIPULATED MOTION TO

Alphabet, Inc., and BRIAN DISMISS APPEAL
JOHNSRUD,
Defendants-Appellees.
Appellant Rivka Spivak and Appellees Google LLC and Brian Johnsrud
stipulate to dismiss this appeal under FRAP 42(b) with prejudice. The parties will
each bear their own fees and costs associated with this appeal and the district court
proceedings below. Google, including its parent corporation Alphabet, Inc., and
Mr. Johnsrud agree not to seek sanctions (monetary or otherwise) against Ms.
Spivak arising from this appeal or the district court proceedings.
DATED: August 16, 2021
s/Rivka Spivak
Rivka Spivak
128 NE 51st St.
Seattle, WA 98105
[email protected]
Plaintiff-Appellant
DATED: August ___, 2021 MILLER NASH GRAHAM & DUNN LLP
Kellen A. Hade, WSBA No. 44535

Katie Loberstein, WSBA No. 51091
Pier 70, 2801 Alaskan Way, Ste. 300
Seattle, WA 98121-1128
(206) 624-8300
[email protected]
[email protected]
Attorneys for Defendants-Appellees

DECLARATION OF SERVICE
I declare that on August ___, 2020, I mailed by first-class mail and emailed
the foregoing document to Plaintiff-Appellant at:
Rivka Spivak
128 NE 51st St.
Seattle, WA 98105
[email protected]
All other parties and counsel will receive electronic notification of this filing from
the Clerk of the Court.
Signed at Seattle, Washington this ____ day of August, 2021.
s/ Kellen A. Hade
Kellen A. Hade, WSBA #44535
4848-5155-8374.1
EXHIBIT C
Hade, Kellen A.

Subject: Re: stipulation
Yes. Go for it.

Do you think you could send me a short declaration confirming that you will be filing the dismissal with prejudice per
stipulated agreement?

I need my children back home, and CPS is citing my pursuit of the Google lawsuit as a “risk” to my kids and a reason to
not return them to me. We have court tomorrow, so if you could send me any kind of declaration that I could share
with the judge, that would be helpful. Please, I need my children back home with me.

Date: Monday, August 16, 2021 at 1:27 PM
Subject: RE: stipulation
Hi Rebecca:

Thanks for the email. Are you approving us to file this stipulated dismissal, which would dismiss the appeal with
prejudice? As you know, that means that you could not reopen it, and both the appeal and the district court case would
be over.

‐Kellen

Kellen A. Hade
Partner
Miller Nash LLP

‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
CONFIDENTIALITY NOTICE: This e‐mail message may contain confidential or privileged information. If you have received
this message by mistake, please do not review, disclose, copy, or distribute the e‐mail. Instead, please notify us
immediately by replying to this message or telephoning us. Thank you.
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
Subject: stipulation

1
See attached
2
EXHIBIT D
Hade, Kellen A.

Sent: Saturday, July 24, 2021 10:47 PM
To: Rebecca Spivak
Cc: Karen Zehnder-Wood; Roush, Shellie (DCYF); Tami Smith; Frimpter, Carolyn; Berris,
Elizabeth; BRYAN HOSS; SHANNON DE JONG; Intake; Callaway Scott; The State Bar of
California; ATG WWW E-mail Antitrust Seattle; Vladimir Coho; Owen McCaul; Court,
Lee; Robert Baines; Cynthia Victory; Hade, Kellen A.; [email protected];
[email protected]
Subject: Re: Who did it better?

Ok, fine,
I mean, you take a guy named “Luther” and you layer it with with black gay gospel, and you are definitely a contender.

https://www.youtube.com/watch?v=fjCIWpfVdsk

But come on, Ronan.
Ronan, my father died in March. Throughout his whole life that I knew him, his favorite song was “My Way.” It’s the
first song he taught me. The last video I have of him his him singing “My way” on his deathbed as my 8‐year old
daughter played it as accompaniment. You would cover this if you didn’t have cause to not cover this. I know
that. Either cover me as someone insane, or take the story as its true. Come on. My daughter learned Frank Sinara’s
signature song so she could play it for my dying father, because it was his favorite song. Give a shit, Ronan.

https://www.facebook.com/rspivak/videos/1010313621378423

Date: Saturday, July 24, 2021 at 9:50 PM
To: Rebecca Spivak <[email protected]>
Cc: Karen Zehnder‐Wood <karen.zehnder‐[email protected]>, Roush, Shellie (DCYF)
<[email protected]>, Tami Smith <[email protected]>, Frimpter, Carolyn
<[email protected]>, Berris, Elizabeth <[email protected]>, BRYAN HOSS
<[email protected]>, SHANNON DE JONG <[email protected]>, Intake
<[email protected]>, Callaway Scott <[email protected]>, The State Bar of California
<[email protected]>, ATG WWW E‐mail Antitrust Seattle <[email protected]>,
Vladimir Coho <[email protected]>, Owen McCaul <[email protected]>, Court, Lee
<[email protected]>, Robert Baines <[email protected]>, Cynthia Victory
<[email protected]>, Hade, Kellen A. <[email protected]>, [email protected]
<[email protected]>
Subject: Who did it better?
Hi Friends ‐ Saturday night fun!

What do you think? Who did the song better?
1
Let me know if you think it matters. I mean, it’s just games. Of course there are some whatever/etc biases here … in
relationship to the performers. But curious to hear opinions from a diverse audience!

Susan Boyle
https://www.youtube.com/watch?v=JxtDmmmJKJg

Frank Sinatra
https://www.youtube.com/watch?v=JjI7VeIA7ZI

Ronan. Seriously. I don’t get it.
2
DECLARATION OF SERVICE
I declare that on August 16, 2021, I mailed by first-class mail and emailed the
foregoing document to Appellant at:
Rivka Spivak
128 NE 51st St.
Seattle, WA 98105
[email protected]
All other parties and counsel will receive electronic notification of this filing from
the Clerk of the Court.
Signed at Seattle, Washington this 16th day of August, 2021.
s/ Kellen A. Hade
Kellen A. Hade, WSBA #44535
4848-5155-8374.1

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Case: 21-35165, 08/16/2021, ID: 12203074, DktEntry: 6, Page 1 of 24

IN THE UNITED STATES COURT OF APPEALS

RIVKA SPIVAK, aka Rebecca Spivak, Case No. 21-35165

Plaintiff-Appellant, Appeal from

GOOGLE LLC, a subsidiary of APPELLEES’ RULE 42.1 MOTION

Appellees Google LLC and Brian Johnsrud oppose appellant Rebecca

must be because I’m crazy, or because I wasn’t willing enough to commit to

perjure myself in asserting that I’m crazy. Oh well.” Exhibit A at p. 1 (emphases

B at pp. 2-3; Exhibit C at p. 1.

Court’s scheduling orders, it continues to prejudice Appellees. Parties are entitled

bring this matter to an end.

parties. 1 Id. (each of these cases dismissed pro se appeals).

she asked Appellees to agree to an extension. Exhibit A at p. 2. Appellees

deadline to file. . . . Oh well.” Exhibit A at p. 1. She waited another week to move

August 16, she emailed appellees’ counsel an electronically signed copy of a

typed name of . . . an unrepresented party.”). Counsel followed up with Ms.

Spivak to confirm her intent:

Counsel: Are you approving us to file this stipulated

Ms. Spivak: Yes. Go for it.

party, Appellees offer the stipulation as evidence to support their motion—rather

than file and rely on the stipulation alone—out of an abundance of caution.

OPPOSITION TO MOTION FOR EXTENSION OF TIME

health and family issues.

a successive motion fails to demonstrate diligence and substantial need.” Id.

Delaying the start of briefing until December will prejudice Appellees,

allegations in this appeal trace back to proceedings started by Appellant in 2015

when the time comes.

to dismiss it and conclude these proceedings.

42.1. Appellees do not oppose Ms. Spivak’s motion to seal.

DATED: August 16, 2021 MILLER NASH LLP

Attorneys for Defendants-Appellees

I, Kellen A. Hade, declare:

1. I am an attorney licensed to practice in the United States Court of

2. Attached as Exhibit A is a true and correct copy of an email thread

between appellant Rebecca Spivak, me and my colleague Katie Loberstein.

3. Attached as Exhibit B is a true and correct copy of an email I

Motion to Dismiss Appeal) attached to it.

4. Attached as Exhibit C is a true and correct copy of an email thread

between appellant Rebecca Spivak, me and my colleague Katie Loberstein.

5. Attached as Exhibit D is a true and correct copy of an email thread

between appellant Rebecca Spivak, me and several unrelated parties.

Executed on August 16, 2021 at Seattle, Washington.

From: Rebecca Spivak <[email protected]>

From: Rebecca Spivak <[email protected]>

IN THE UNITED STATES COURT OF APPEALS

RIVKA SPIVAK, aka Rebecca Spivak, Case No. 21-35165

Plaintiff-Appellant, Appeal from

GOOGLE LLC, a subsidiary of STIPULATED MOTION TO

Spivak arising from this appeal or the district court proceedings.

DATED: August 16, 2021

Kellen A. Hade, WSBA No. 44535

Attorneys for Defendants-Appellees

the foregoing document to Plaintiff-Appellant at:

the Clerk of the Court.

Signed at Seattle, Washington this ____ day of August, 2021.

From: Rebecca Spivak <[email protected]>

From: Rebecca Spivak <[email protected]>

foregoing document to Appellant at:

the Clerk of the Court.