A cranky yank who filed a lawsuit against  Apple because she was having problems with her 3G iPhone failed to ask Apple to fix the problems prior to suing the phone maker a court has heard.

Late last week Apple has asked a federal judge to dismiss the case because the woman did not ask Apple to repair the iPhone or provide for a refund. The Alabama woman claimed said her iPhone 3G dropped calls, couldn't reliably connect to her provider's network and was slower than advertised.

"The Defective iPhone 3G appeared to connect to the 3G standard and protocol less than 25% of the time," Jessica Smith claimed in her application for damages.

Since then, Apple has released a pair of iPhone software updates, including one in September that seemed to solve network problems for some users.

Computerworld reports that Apple claims that according to Alabama law, as well as the terms of Apple's warranty, consumers are required to ask for repair or a replacement, or a refund, before filing a lawsuit, Apple said. "Plaintiffs do not allege that they notified Apple of the alleged problems they experienced, or otherwise attempted to obtain a repair or replacement under warranty," the motion continued. "Instead, Plaintiffs allege that Apple is generally 'aware of the above-stated defects' and has 'attempted to undertake corrective action too late with little or no success'."

Apple's motion for dismissal cited sections of the Alabama Commercial Code, Apple's own warranty and other legal precedents in moving that the judge make Smith's lawsuit moot. The case is still pending.