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STATE OF NORTH CAROLINA IN THE GENERAL COURT OF
JUSTICE
ORANGE COUNTY SUPERIOR COURT DIVISION
22 CVS 255
Biomilq,Inc.,
Plaintiff and
Counterclaim Defendant,
v.
SHAYNE GUILIANO and 108LABS,
LLC,
Defendants and GUILIANO REPLY TO
Counterclaim Plaintiffs, COUNTERPARTIES REPLY ON
MOTION TO AMEND CASE
v.
MANAGEMENT ORDER
LEILA STRICKLAND; MICHELLE
EGGER; BREAKTHROUGH
ENERGY VENTURES, LLC; BEV
JOHN DOES; BIOMILQ JOHN
DOES; and GOODWIN PROCTOR
LLP,
Counterclaim
Defendants.
Guiliano, self-represented, responds herein to counterparties’ reply briefs to
his motion to amend case management order.
1
Case No.2022CVS255 ECF No. 291 Filed 02/07/2024 21:44:36 N.C. Business Court
INDEX
I. This motion was timely, and simply requests separation of discovery
limits from 108Labs
II. Sidedness creates interdependent discovery limits between Guiliano
and 108Labs despite distinct claims
III. 108Labs claims are its own, and important, too
IV. Guiliano is not 108Labs, 108Labs is Guiliano’s property, and the
inventions were created by Guiliano and his ex wife, Strickland.
V. 108Labs’ claims are pivotal but less established than Guiliano’s claims
VI. Guiliano presumptively owns a tenancy in common in both spouses’
inventions in Patent ‘407
VII. Guiliano’s trust res appears inevitable
VIII. Complexity is a fact and burden on Guiliano, not a construct of
Guiliano’s
IX. Sufficient discovery of complex matters is not inherently prejudicial.
X. Guiliano’s self-representation raised these issues newly
XI. Guiliano’s claims and discovery in this action do properly relate to his
property claims in 22CVD283, and beyond
XII. Guiliano did confer per BCR 7.3
XIII. Prospective costs of discovery over complex matters are not
prejudicial to counterparties who may have unjustly benefited therefrom
2
I. This motion was timely, and simply requests separation of discovery
limits from 108Labs
Guiliano prepared this motion after the Court ordered parties to pursue
discovery diligently on October 31, 2023.
This action is sufficiently progressed such that the parties to this action are
aware of the facts and circumstances at issue and should pursue discovery
diligently. See ECF No. 218.
Guiliano views this motion as timely, essential, and aligned with this
direction from the Court. The burden rests on Guiliano to establish his own
procedures and plan to conduct discovery because his claims are broadest across
both actions, and legally and equitably distinct from 108Labs.
The Court only ordered the parties to confer on scheduling, without other
considerations, and motions to dismiss are still pending.
Guiliano concluded these proposed procedural changes required a separate
and immediate briefing cycle so procedural changes may be implemented before
conferrals on scheduling impacted by such changes, and this motion requests
procedural adjustments to provide discovery planning clarity before a new schedule
is ordered.
Counterparties also claim Guiliano failed to show cause. Guiliano disagrees.
3
Understanding the cause for an end to sidedness and return to presumptive
limits perhaps requires a deeper reflection on the scope and distinction between
108Labs and Guiliano claims, including how claims do relate to 22CVD283.
II. Sidedness creates interdependent discovery limits between Guiliano
and 108Labs despite distinct claims
Under Order ECF No. 138, Guiliano’s discovery functions like a zero sum
game which diminishes 108labs discovery rights by the exercise of Guiliano’s.
He prays for an end to sidedness, whether or not discovery limits remain
below presumptive limits.
Striking sidedness establishes a fair right for Guiliano to conduct
self-represented discovery separately and without reducing 108Labs discovery, and
vice versa.
Less-than-presumptive limits combined with sidedness interdependency may
preclude much of Guiliano’s discovery planning on distinct claims and trust res
property tracing.
Further, Counterparties were granted stay of discovery in 22CVD283 despite
denial of Rule 12(b)(6) defenses, which is relevant here because discovery
limitations may prejudice Guiliano’s equitable rights in both actions.
III. 108Labs claims are its own, and important, too
4
108Labs LLC has its own property rights and torts, without ability to
conceive of inventions or children.
108Labs has separate legal representation and discovery agenda and
property interests which are legally and equitably distinct from Guiliano’s, even if
they compete in claiming inventive properties, such as Guiliano’s inventions.
108Labs claims an expectant ownership interest in Guiliano’s inventions, too,
which may establish patent unity at 108Labs in all claims priority to Patent ‘407
whether attributable to either manager during invention.
IV. Guiliano is not 108Labs, 108Labs is Guiliano’s property, and the
inventions were created by Guiliano and his ex wife, Strickland.
The claims of 108Labs are not the same as Guiliano’s claims.
Guiliano is an undisputed co-inventor in Patent ‘407 subject matter, and
108Labs cannot invent.
Guiliano is an alleged co-inventor on Patent ‘149 subject matter, too,
especially “SIgA” biosynthesis1, solely conceived by him on March 22nd, 2020 while
studying 108Labs’ secret proteomics data from 108Labs’ first cell-cultured human
milk, and disclosed to Strickland in confidence before her resignation.
Guiliano is a 50% economic interest owner in 108Labs.
Guiliano was married to co-inventor Strickland during the entire creation of
subject matter described by Patent ‘407.
1
https://patentimages.storage.googleapis.com/cf/91/4a/73a7e5afa8e8c3/US20240002767A1.pdf
5
108Labs is not human, and only humans can invent and marry.
V. 108Labs’ claims are pivotal but less established than Guiliano’s claims
108Labs has not established an expectant interest in Patent ‘407 by Court
order.
If this Court finds 108Labs owns expectant interest in Patent ‘407, then
assignment is a nullity and 108Labs’ trust res traces into all property gains received
by Biomilq, Inc after assignment at the expense of 108Labs and Guiliano, as
108Labs’ 50% economic interest owner.
The only knowledge plaintiff had concerning hosiery trimming was acquired
by him while acting as agent of Somerset and Aubre. The so-called inventions
of the patent for which he and Ginn applied were discovered in a confidential
manner from Somerset or Gamache, when he in good conscience was
obligated by his agency to promote the interests of his principal. He can not
obtain the trade secrets, the experiments and work of his principal and the
information acquired in his efforts to promote his principal's interests, and
thereafter use the information so acquired to undermine and to injure his
principal. He and his confederates must be restrained from such conduct…If
a patent issues on plaintiff's application in equity and good conscience it
belongs to Somerset and plaintiff will be compelled to assign his rights
therein to Somerset in accordance with the law in this circuit. Funchion v.
Somerset Knitting Company, 158 F. Supp. 57, 62 (M.D.N.C. 1958)
Once the invention is made and an application for patent is filed, however,
legal title to the rights accruing thereunder would be in the assignee (subject
to the rights of a subsequent purchaser under § 261), and the
assignor-inventor would have nothing remaining to assign… Cadotte had
nothing to give to FilmTec and his purported assignment to FilmTec is a
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nullity. Filmtec Corp. v. Allied-Signal Inc., 939 F.2d 1568, 1572 (Fed. Cir.
1991)
The patents were developed from resources improperly taken from the
complainant; and Mrs. Flannery, who was a link in the machinery for
diverting them, cannot object to their return on the ground that
comparatively small sums of her own were intermingled. Vorlander v. Keyes,
8 Cir., 1 F.2d 67. The res therefore is traced from the original bonds into the
patents and inventions which their proceeds were used to create and
improve. Flannery took the bonds as a trustee ex maleficio for the 1926
corporation. The patents and inventions are still subject to that trust. "It is
an undoubted principle that as between a cestui que trust and trustee and all
parties claiming under the trustee, otherwise than by purchase for valuable
consideration without notice, all property belonging to a trust, however much
it may be changed or altered in its nature or character, and all the fruits of
such property, whether it is in its original or its altered state, continues to be
subject to or affected by the trust." Pennell v. Deffell, 4 DeGex, M. G. 372, 388
(1854), Flannery v. Flannery Bolt Co., 108 F.2d 531, 533-34 (3d Cir. 1940)
To the same effect see United States v. Dunn, 268 U.S. 121, 45 S.Ct. 451, 69
L.Ed. 876, where converted rights in oil property were traced into the stock of
a corporation; Republic Supply Co. v. Richfield Oil Co., 9 Cir., 79 F.2d 375,
377, where the res was traced into stock in trade, equipment, and real estate;
and Elmer Co. v. Kemp, 9 Cir., 67 F.2d 948. In the Republic Supply Co. case
the court said [79 F.2d 377]: "It is established beyond debate that no change
of form can divest a trust fund of its trust character, and that the cestui may
follow and reclaim his funds so long as he is able to trace and identify them,
not as his original dollars or necessarily as any dollars, but through and into
any form into which his dollars may have been converted. Flannery v.
Flannery Bolt Co., 108 F.2d 531, 534 (3d Cir. 1940)
Thus, to protect a trade secret, equity will enjoin third persons to whom the
secret has been divulged if they have notice of the breach of trust. See, e. g.,
Colgate-Palmolive Co. v. Carter Products, Inc., 230 F.2d 855, 864-865 Such
third persons are not themselves malefactors, any more than this state officer
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is; they are enjoined in order to give the victim of the wrong effective
protection." Cleary v. Bolger, 371 U.S. 392, 83 S. Ct. 385 (1963)
A prospective 108Labs’ expectant ownership interest finding and resulting
nullity would clarify distinct trust res instantiations for 108Labs and Guiliano by
establishing the “location” of Patent ‘407 has never left 108Labs.
108Labs equitable remedy would become legal disgorgement of res property
traced into Biomilq, Inc, while Guiliano’s res traces tangentially only into valuable
consideration of paper of value held by other conscious wrongdoers at the expense of
Guiliano’s economic interests in 108Labs.
No legal disgorgement claim in Guiliano’s presumptive tenancy in common in
Patent ‘407 would arise unless 108Labs owns no expectant interest, resulting only
in money damages and equitable liens upon equitable disgorgement for Guiliano
after 108Labs establishes expectant ownership of Patent ‘407.
VI. Guiliano presumptively owns tenancy in common in both spouses’
inventions in Patent ‘407
In the absence of an order finding 108Labs’ owns expectant interests in
Patent ‘407, Guiliano is presumed owner by tenancy in common in Patents ‘407 by
his own co-inventor rights and his marital rights in Strickland’s co-inventor rights.
“Certain incidents of patent ownership have been created or clarified by
statute, see 35 U.S.C. § 262, yet the common law provided the basic rules, as
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manifested in the concepts of tenancy in common and undivided interests
that courts have drawn upon in patent ownership disputes.” Ethicon, Inc. v.
U.S. Surgical Corp., 135 F.3d 1456, 1471 (Fed. Cir. 1998)
“A divorce a mensa et thoro does not destroy the unity or entirety, but a
divorce a vinculo does, as it destroys the unity and will convert the estate by
entirety into one in common.” Turlington v. Lucas, 186 N.C. 283, 286 (N.C.
1923)
Guiliano and Strickland finalized divorce on December 29th, 2023.
Temporally, Guiliano’s presumed tenancy in common in Guiliano’s Patent
‘407 rights was established upon his novel conceptions since September 11, 2013,
and established in Strickland’s conceptions upon marital separation on March 29th,
2020.
If this Court finds 108Labs owns no expectant interests in Patent ‘407,
Guiliano owns tenancy in common in any right inequitably possessed at Guiliano’s
expense by Biomilq, Inc and other conscious wrongdoers after marital separation,
because his trust res traces into all property inequitably possessed.
Guiliano’s position is that his trust res begins at assignment, whether or not
108Labs owns expectant interests in Patent ‘407.
In other words, Guiliano is conducting discovery into his own personal
equitable and legal property rights and tortious claims which are legally and
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equitably distinct from 108Labs rights and torts, including diminishment of his
economic rights in 108Labs and presumed tenancy in common in any rights in
Patent ‘407 inequitably held by third parties other than Strickland or 108Labs.
VII. Guiliano’s marital trust res appears inevitable
Cline established a 10-year statute of limitations on marital trust res, which
only runs after dispossession of res property.
Finally, we find no merit in defendant's contention that plaintiff's action is
barred by the statute of limitations. "A resulting or constructive trust, as
distinguished from an express trust, is governed by the ten-year statute of
limitations. G.S. 1-56. . . . Moreover it is established by authoritative
decisions of this Court that the statute of limitations does not run against a
cestui que trust in possession." Bowen v. Darden, 241 N.C. 11, 17, 84 S.E.2d
289, 294 (1954). So long as an equitable owner retains possession, nothing
else appearing, the statute of limitations does not run against him. Cline v.
Cline, 297 N.C. 336, 348 (N.C. 1979)
Guiliano noticed counterparties of intent to file motion for instantiating his
trust res during phase I of discovery, proceeding with trust res tracing into Biomilq,
Inc and conscious wrongdoers during phase II.
The primary res controversy remaining is whether 108Labs may also
establish a trust res by establishing an expectant ownership interest in all rights in
Patent ‘407, but such finding would only change how Guiliano’s trust res operates
without affecting the instantiation thereof.
10
Guiliano also pled separate tortious claims distinct from 108Labs which
require separated discovery, such as alienation of affection, loss of consortium,
defamation, slander of title, breach of marital duties, and pain and suffering.
108Labs is only a marital entity, and technically “shares” no rights or claims
with Guiliano.
VIII. Complexity is a fact and burden on Guiliano, not a construct of
Guiliano’s
This case is inherently complex by no fault of Guiliano but because of
counterparty transaction fact patterns, the number of persons involved, the
numerous applicable areas of law, and the novel commercial opportunities in
cell-cultured milk emerging around the world in foods, nutraceuticals and
therapeutic drugs, continuously revealing product opportunities exclusive to these
inventions that are complex, diverse, valuable and relevant to Guiliano’s equitable
claims discovery.
Complex fact establishment and expert discovery is necessary to support
Guiliano’s claims and prayers for relief by equitable disgorgement of unjust gains
and tortious patent damages impacting the future of this monopoly.
IX. Sufficient discovery of complex matters is not inherently prejudicial.
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Guiliano doesn’t wish to diminish 108Labs discovery efforts in establishing
expectant rights, nullity of assignment, and constructive trusts res instantiations by
exercising his own discovery rights.
Guiliano has identified 12 prospective deponents in his proposed first phase
of discovery, ECF No. 271.3, Pg 29-30, to discover facts from early 2020 after
separation and before assignment when he was being told by his newly estranged
wife, Biomilq counsel Goodwin, and Biomilq CEO Egger that Biomilq, Inc would
abandon the milk project, Guiliano co-inventive tenancy in common was not in
question, BEV knew 108Labs was the owner, and Biomilq, Inc officers affirmed
Biomilq, Inc would not use 108Labs property in Biomilq, Inc operations. See ECF
No. 121.16.
That so many persons and entities may have knowingly gained since then
from interference in Guiliano’s family, family-run business and marital property
rights is not Guiliano’s fault, but his burden.
With this motion, Guiliano is requesting a right to separately conduct
discovery to establish facts in support of his distinctly pled equitable wrongs and
tortious claims, guided by certain rules and procedures of the Restatement (Third)
of Restitution and Unjust Enrichment (2010), and other controlling and persuasive
authorities on pled claims.
X. Guiliano’s self-representation raises these issues newly
12
Perhaps the current order entered by former counsel made more sense before
Guiliano discharged counsel previously shared with 108Labs, but it makes less
sense now with Guiliano self-represented and Guiliano’s discovery stayed in
22CVD283 in deference to this prior pending action.
As counterparties noted, the difference between sidedness with
less-than-presumptive limits in the current order vs proposed order is 7/2 vs 12
Guiliano fact depositions, taking into account 0 depositions allowed in District
Court which would otherwise be unlimited in time and quantity without stay.
3.5 depositions is less than the number of counterparties and insufficient to
establish the trust res, much less trace it.
Counterparties didn't argue why presumptive BCR limits are prejudicial, and
Guiliano concludes BCR rules are well-considered.
If counterparties find good cause later to limit Guiliano’s number of
depositions below presumptive limits, they have a right to motion for protective
order at any time under Rule 26.
If Guiliano cannot maintain a courteous posture moving forward, Guiliano
presumes this Court will fairly limit or completely end Guiliano’s right to discovery
under Rule 26.
Guiliano has a right to conduct his first depositions before concluding he may
treat any deponent or deponent counsel discourteously during depositions.
13
While Guiliano has sent some discourteous emails to counterparty legal
counsel in the past, Guiliano has also been reasonable much of the time, and
usually consents to reasonable requests.
Guiliano has substantively cooperated in discovery since onset of this action
including consented digital forensics of personal devices, while counterparties have
not substantively cooperated in discovery in either action, and have yet to confirm
the backup of personal devices of Strickland and Egger, despite written demands
since February 8th, 2022 to secure backups.
Diligent efforts at conferral in both actions have yielded few disclosures or
deposition cooperation by counterparties in discovery, whether requested by
self-represented Guiliano, or by former counsels Mr. Kelly, Judge McGuire, Mr.
Oswald, or Ms. Warwick, who is 108Labs’ current counsel.
Much work remains.
XI. Guiliano’s claims and discovery in this action do properly relate to his
property claims in 22CVD283, and beyond
Counterparties argue, “Rather than show good cause, Guiliano’s Motion
mostly argues the merits of his equitable-distribution claims and focuses on
discovery relating to those claims. (See id. at 11-17.) Those claims have been
brought in a separate action, and discovery into them is not governed by this
Court’s Case Management Order.”
14
Counterparties were granted stay of discovery in 22CVD283 with arguments
that District Court is the wrong jurisdiction for Guiliano to conduct discovery of
conscious wrongdoing.
And this Court found “a party may file an action in superior court concerning
property involved in the District Court Action, see, e.g., Baldelli v. Baldelli, 249 N.C.
App. 603, 608 (2016), and Jessee v. Jessee, 212 N.C. App. 426 (2011)” See ECF No.
288.
Guiliano filed claims here concerning transactions related to property
involved in the District Court action, but he has not filed his claim for equitable
distribution here, and this Court denied his motion for joint consolidation of
common transactions across the actions.
Guiliano’s tortious and equitable claims filed here establish a broad scope of
discovery related to tortious interference and post-separation unjust enrichment
from inequitably possessing property in which he either owns beneficial economic
interests through 108Labs, or legal and equitable tenancy in common by
co-conception and marriage to Strickland.
At present, there is no other jurisdiction where he may conduct discovery into
inequitable possession and tortious interference in interests created or acquired
during his marriage to Strickland, or after.
The zero sum game in the current order disfavors parties on the side with the
most claims against the most parties, and prejudicial to 108Labs and Guiliano
15
considering they don’t have the same claims or interests or remedies in properties
in controversy.
XII. Guiliano did confer per BCR 7.3
As counterparties detailed, Guiliano conferred with counterparties as
obligated under BCR 7.3.
Guiliano explained three modest changes which succinctly described his
motion, and sent another courtesy email at 10:44am before deadline:
Sending this out again for everyone's convenience. Please respond within the
next hour if you wish to state a position on amending the case management
order.
Rather than stating a position, Biomilq, Inc demanded Guiliano disclose the
motion before stating a position.
BCR 7.3 does not appear to require disclosing a proposed motion, and does
not require movants agree to delay upon such demand.
Guiliano disagrees he violated the BCR rule on motion conferral by holding
firm on deadline. This modest motion proposes essential changes to separate his
discovery from 108Labs, with motions and briefs hopefully deemed free of
discourteousness, as ordered since his last discourteous conduct.
16
Further, counterparties have not reciprocated to requests for drafts, such as
their amended counter-complaint, for example, which they requested consent
without agreeing to produce a draft, before Guiliano consented.
Is it discourteous to not produce drafts during motion conferral?
Irrespective of whether disclosure is courteous or obligated, Guiliano
disclosed the draft to confirm his detailed notes accurately reflect the changes, but
re-affirmed his response deadline.
Guiliano then gave an extra 90 minutes to respond, and filed at 1:31pm.
Guiliano admits his response weeks ago to Biomilq, Inc’s demand for
disclosure and delay was discourteous, and appears self-defeating, but hopefully
unrepeated any further, and less relevant to the merits of procedural concerns in
interdependent discovery limits caused by sidedness which causes 108Labs and
Guiliano to unfairly compete for already-less-than-presumptive discovery rights.
XIII. Prospective costs of discovery over complex matters are not
prejudicial to counterparties who may have unjustly benefited therefrom
Limitations on Frequency and Extent. - The frequency or extent of use of the
discovery methods set forth in section (a) shall be limited by the court if it
determines that: …(iii) the discovery is unduly burdensome or expensive,
taking into account the needs of the case, the amount in controversy,
limitations on the parties' resources, and the importance of the issues
17
at stake in the litigation. The court may act upon its own initiative after
reasonable notice or pursuant to a motion under section (c). Rule 26(b)(1a)
The needs of this case appear extraordinary, with counterparties and patent
rights spread around the world, and many obvious essential documents, facts, and
transactions yet to be discovered.
Guiliano concludes 10-12 depositions may be necessary to impose trust res on
assignment of Patent ‘407, based on evidence already in hand. Tracing the res to
completion into Biomilq, Inc and other conscious wrongdoers may require more
depositions considering the ~100 man-years of research conducted by Biomilq, Inc
since 2020.
The amount in controversy is substantial.
A minimal presumptive disgorgement claim may be $25,000,000, based on
third party cash payments to Biomilq, Inc at the expense of Guiliano and 108Labs
rights. Biomilq, Inc paper of value was allegedly worth $85,000,000, post-money,
establishing a preliminary equitable ceiling, pending expert discovery.
Counterparties allegedly held 70-80% of shares in Biomilq, Inc upon countersuit.
Intrinsic value of tortious patent damages may eclipse equitable damages.
The average value of NDA-approved single-drug companies typically exceeds a
billion dollars2, and biosynthetic human milk yields a promising drug pipeline.3 4
2
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8854317/
3
https://www.sciencedirect.com/science/article/pii/S0002916523058227#:~:text=Human%20milk%20prote
ins%20also%20exert,the%20gut%20and%20its%20 functions
4
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3586783/#:~:text=Human%20milk%20also%20contains%
20many,investigated%20as%20novel%20therapeutic%20agents.
18
Revenue potential for human infant formula in 20 years may be tens of billions of
dollars with 10% market share5. Cell-cultured bovine milk for production of
alternative cheese may dominate alternative cheeses eventually.6
Exclusive commercial value in controversy is potentially enormous and
credible, and may explain motive.
Biomilq, Inc and Guiliano appear to publicly agree on prospective value.7
Counterparties are apparently backed by wealthy investors, clarifying their
resources.8
The importance of the invention of cell-cultured human milk is not easily
overstated. Cell-cultured human milk may supply the first human milk molecules
considered “safe to consume“ without pasteurization because it’s the first human
milk produced in pathogen-free conditions.9
Biosynthetic molecules isolated from mammary cell culture may impact
infant health with new therapeutic treatments including orphaned drug indications
in preterm care10, cancer11, and other immunocompromised populations12.
Considering factors under Rule 26(b)(1a), the Court may fairly lean towards
expanding and separating discovery of 108Labs and Guiliano rather than limiting
discovery of either at this time.
5
https://www.gminsights.com/industry-analysis/infant-formula-market
6
https://www.futuremarketinsights.com/reports/cheese-alternative-market
7
https://qz.com/artificial-breast-milk-biomilq-lab-grown-1851095589
8
https://www.prnewswire.com/news-releases/novo-holdings-leads-us21m-series-a-financing-in-biomilq-30
1404490.html
9
Milk derived from any mammal, humans included, is not pathogen free.
10
https://www.mdpi.com/2072-6643/9/8/817
11
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8248127/
12
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7926697/
19
Guiliano has not yet received substantive discovery documents nor
cooperation in depositions which would reflect a substantial start to discovery in
either action.
Guiliano prays this motion be granted to end sidedness to separately limit
discovery rights so he may diligently pursue fact discovery without interfering with
108Labs discovery upon entry of a new case management schedule.
Table of Authorities
1. Baldelli v. Baldelli, 249 N.C. App. 603, 608 (2016)
2. Bowen v. Darden, 241 N.C. 11, 17, 84 S.E.2d 289, 294 (1954)
3. Cleary v. Bolger, 371 U.S. 392, 83 S. Ct. 385 (1963)
4. Cline v. Cline, 297 N.C. 336, 348 (N.C. 1979)
5. Elmer Co. v. Kemp, 9 Cir., 67 F.2d 948
6. Ethicon, Inc. v. U.S. Surgical Corp., 135 F.3d 1456, 1471 (Fed. Cir. 1998)
7. Filmtec Corp. v. Allied-Signal Inc., 939 F.2d 1568, 1572 (Fed. Cir. 1991)
8. Flannery v. Flannery Bolt Co., 108 F.2d 531, 534 (3d Cir. 1940)
9. Funchion v. Somerset Knitting Company, 158 F. Supp. 57, 62 (M.D.N.C.
1958)
10. Jessee v. Jessee, 212 N.C. App. 426 (2011)
11. Pennell v. Deffell, 4 DeGex, M. G. 372, 388 (1854)
12. Republic Supply Co. v. Richfield Oil Co., 9 Cir., 79 F.2d 375, 377
13. Restatement (Third) of Restitution and Unjust Enrichment (2010)
14. Sparks v. Peacock, 129 N.C. App. 640, 642 (N.C. Ct. App. 1998)
15. Turlington v. Lucas, 186 N.C. 283, 286 (N.C. 1923)
16. United States v. Dunn, 268 U.S. 121, 45 S.Ct. 451, 69 L.Ed. 876
17. Vorlander v. Keyes, 8 Cir., 1 F.2d 67
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RULE 7.8 CERTIFICATION
The undersigned hereby certifies that the foregoing Reply Brief does not
exceed 3,750 words and complies with the provisions of BRC 7.8.
This the 7th day of February, 2024.
/s/ Shayne Guiliano
Shayne Guiliano
Defendant and Counterclaim Plaintiff
141 W. King St.
Hillsborough, NC 27278
Telephone: 919-450-7226
autonomous@gmail.com
CERTIFICATE OF SERVICE
I hereby certify that, pursuant to Rule 3.9(a) of the Business Court Rules, the
foregoing document was filed this day using the Court’s electronic filing system and
has been served to all counterparty counsel through the issuance of a Notice of
Filing.
This 7th day of February 2024
/s/ Shayne Guiliano
Shayne Guiliano
Defendant and Counterclaim Plaintiff
141 W. King St.
Hillsborough, NC 27278
Telephone: 919-450-7226
autonomous@gmail.com
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STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE ORANGE COUNTY SUPERIOR COURT DIVISION 22 CVS 255 Biomilq,Inc., Plaintiff and Counterclaim Defendant, v. SHAYNE GUILIANO and 108LABS, LLC, Defendants and GUILIANO REPLY TO Counterclaim Plaintiffs, COUNTERPARTIES REPLY ON MOTION TO AMEND CASE v. MANAGEMENT ORDER LEILA STRICKLAND; MICHELLE EGGER; BREAKTHROUGH ENERGY VENTURES, LLC; BEV JOHN DOES; BIOMILQ JOHN DOES; and GOODWIN PROCTOR LLP, Counterclaim Defendants. Guiliano, self-represented, responds herein to counterparties’ reply briefs to his motion to amend case management order. 1 Case No.2022CVS255 ECF No. 291 Filed 02/07/2024 21:44:36 N.C. Business Court INDEX I. This motion was timely, and simply requests separation of discovery limits from 108Labs II. Sidedness creates interdependent discovery limits between Guiliano and 108Labs despite distinct claims III. 108Labs claims are its own, and important, too IV. Guiliano is not 108Labs, 108Labs is Guiliano’s property, and the inventions were created by Guiliano and his ex wife, Strickland. V. 108Labs’ claims are pivotal but less established than Guiliano’s claims VI. Guiliano presumptively owns a tenancy in common in both spouses’ inventions in Patent ‘407 VII. Guiliano’s trust res appears inevitable VIII. Complexity is a fact and burden on Guiliano, not a construct of Guiliano’s IX. Sufficient discovery of complex matters is not inherently prejudicial. X. Guiliano’s self-representation raised these issues newly XI. Guiliano’s claims and discovery in this action do properly relate to his property claims in 22CVD283, and beyond XII. Guiliano did confer per BCR 7.3 XIII. Prospective costs of discovery over complex matters are not prejudicial to counterparties who may have unjustly benefited therefrom 2 I. This motion was timely, and simply requests separation of discovery limits from 108Labs Guiliano prepared this motion after the Court ordered parties to pursue discovery diligently on October 31, 2023. This action is sufficiently progressed such that the parties to this action are aware of the facts and circumstances at issue and should pursue discovery diligently. See ECF No. 218. Guiliano views this motion as timely, essential, and aligned with this direction from the Court. The burden rests on Guiliano to establish his own procedures and plan to conduct discovery because his claims are broadest across both actions, and legally and equitably distinct from 108Labs. The Court only ordered the parties to confer on scheduling, without other considerations, and motions to dismiss are still pending. Guiliano concluded these proposed procedural changes required a separate and immediate briefing cycle so procedural changes may be implemented before conferrals on scheduling impacted by such changes, and this motion requests procedural adjustments to provide discovery planning clarity before a new schedule is ordered. Counterparties also claim Guiliano failed to show cause. Guiliano disagrees. 3 Understanding the cause for an end to sidedness and return to presumptive limits perhaps requires a deeper reflection on the scope and distinction between 108Labs and Guiliano claims, including how claims do relate to 22CVD283. II. Sidedness creates interdependent discovery limits between Guiliano and 108Labs despite distinct claims Under Order ECF No. 138, Guiliano’s discovery functions like a zero sum game which diminishes 108labs discovery rights by the exercise of Guiliano’s. He prays for an end to sidedness, whether or not discovery limits remain below presumptive limits. Striking sidedness establishes a fair right for Guiliano to conduct self-represented discovery separately and without reducing 108Labs discovery, and vice versa. Less-than-presumptive limits combined with sidedness interdependency may preclude much of Guiliano’s discovery planning on distinct claims and trust res property tracing. Further, Counterparties were granted stay of discovery in 22CVD283 despite denial of Rule 12(b)(6) defenses, which is relevant here because discovery limitations may prejudice Guiliano’s equitable rights in both actions. III. 108Labs claims are its own, and important, too 4 108Labs LLC has its own property rights and torts, without ability to conceive of inventions or children. 108Labs has separate legal representation and discovery agenda and property interests which are legally and equitably distinct from Guiliano’s, even if they compete in claiming inventive properties, such as Guiliano’s inventions. 108Labs claims an expectant ownership interest in Guiliano’s inventions, too, which may establish patent unity at 108Labs in all claims priority to Patent ‘407 whether attributable to either manager during invention. IV. Guiliano is not 108Labs, 108Labs is Guiliano’s property, and the inventions were created by Guiliano and his ex wife, Strickland. The claims of 108Labs are not the same as Guiliano’s claims. Guiliano is an undisputed co-inventor in Patent ‘407 subject matter, and 108Labs cannot invent. Guiliano is an alleged co-inventor on Patent ‘149 subject matter, too, especially “SIgA” biosynthesis1, solely conceived by him on March 22nd, 2020 while studying 108Labs’ secret proteomics data from 108Labs’ first cell-cultured human milk, and disclosed to Strickland in confidence before her resignation. Guiliano is a 50% economic interest owner in 108Labs. Guiliano was married to co-inventor Strickland during the entire creation of subject matter described by Patent ‘407. 1 https://patentimages.storage.googleapis.com/cf/91/4a/73a7e5afa8e8c3/US20240002767A1.pdf 5 108Labs is not human, and only humans can invent and marry. V. 108Labs’ claims are pivotal but less established than Guiliano’s claims 108Labs has not established an expectant interest in Patent ‘407 by Court order. If this Court finds 108Labs owns expectant interest in Patent ‘407, then assignment is a nullity and 108Labs’ trust res traces into all property gains received by Biomilq, Inc after assignment at the expense of 108Labs and Guiliano, as 108Labs’ 50% economic interest owner. The only knowledge plaintiff had concerning hosiery trimming was acquired by him while acting as agent of Somerset and Aubre. The so-called inventions of the patent for which he and Ginn applied were discovered in a confidential manner from Somerset or Gamache, when he in good conscience was obligated by his agency to promote the interests of his principal. He can not obtain the trade secrets, the experiments and work of his principal and the information acquired in his efforts to promote his principal's interests, and thereafter use the information so acquired to undermine and to injure his principal. He and his confederates must be restrained from such conduct…If a patent issues on plaintiff's application in equity and good conscience it belongs to Somerset and plaintiff will be compelled to assign his rights therein to Somerset in accordance with the law in this circuit. Funchion v. Somerset Knitting Company, 158 F. Supp. 57, 62 (M.D.N.C. 1958) Once the invention is made and an application for patent is filed, however, legal title to the rights accruing thereunder would be in the assignee (subject to the rights of a subsequent purchaser under § 261), and the assignor-inventor would have nothing remaining to assign… Cadotte had nothing to give to FilmTec and his purported assignment to FilmTec is a 6 nullity. Filmtec Corp. v. Allied-Signal Inc., 939 F.2d 1568, 1572 (Fed. Cir. 1991) The patents were developed from resources improperly taken from the complainant; and Mrs. Flannery, who was a link in the machinery for diverting them, cannot object to their return on the ground that comparatively small sums of her own were intermingled. Vorlander v. Keyes, 8 Cir., 1 F.2d 67. The res therefore is traced from the original bonds into the patents and inventions which their proceeds were used to create and improve. Flannery took the bonds as a trustee ex maleficio for the 1926 corporation. The patents and inventions are still subject to that trust. "It is an undoubted principle that as between a cestui que trust and trustee and all parties claiming under the trustee, otherwise than by purchase for valuable consideration without notice, all property belonging to a trust, however much it may be changed or altered in its nature or character, and all the fruits of such property, whether it is in its original or its altered state, continues to be subject to or affected by the trust." Pennell v. Deffell, 4 DeGex, M. G. 372, 388 (1854), Flannery v. Flannery Bolt Co., 108 F.2d 531, 533-34 (3d Cir. 1940) To the same effect see United States v. Dunn, 268 U.S. 121, 45 S.Ct. 451, 69 L.Ed. 876, where converted rights in oil property were traced into the stock of a corporation; Republic Supply Co. v. Richfield Oil Co., 9 Cir., 79 F.2d 375, 377, where the res was traced into stock in trade, equipment, and real estate; and Elmer Co. v. Kemp, 9 Cir., 67 F.2d 948. In the Republic Supply Co. case the court said [79 F.2d 377]: "It is established beyond debate that no change of form can divest a trust fund of its trust character, and that the cestui may follow and reclaim his funds so long as he is able to trace and identify them, not as his original dollars or necessarily as any dollars, but through and into any form into which his dollars may have been converted. Flannery v. Flannery Bolt Co., 108 F.2d 531, 534 (3d Cir. 1940) Thus, to protect a trade secret, equity will enjoin third persons to whom the secret has been divulged if they have notice of the breach of trust. See, e. g., Colgate-Palmolive Co. v. Carter Products, Inc., 230 F.2d 855, 864-865 Such third persons are not themselves malefactors, any more than this state officer 7 is; they are enjoined in order to give the victim of the wrong effective protection." Cleary v. Bolger, 371 U.S. 392, 83 S. Ct. 385 (1963) A prospective 108Labs’ expectant ownership interest finding and resulting nullity would clarify distinct trust res instantiations for 108Labs and Guiliano by establishing the “location” of Patent ‘407 has never left 108Labs. 108Labs equitable remedy would become legal disgorgement of res property traced into Biomilq, Inc, while Guiliano’s res traces tangentially only into valuable consideration of paper of value held by other conscious wrongdoers at the expense of Guiliano’s economic interests in 108Labs. No legal disgorgement claim in Guiliano’s presumptive tenancy in common in Patent ‘407 would arise unless 108Labs owns no expectant interest, resulting only in money damages and equitable liens upon equitable disgorgement for Guiliano after 108Labs establishes expectant ownership of Patent ‘407. VI. Guiliano presumptively owns tenancy in common in both spouses’ inventions in Patent ‘407 In the absence of an order finding 108Labs’ owns expectant interests in Patent ‘407, Guiliano is presumed owner by tenancy in common in Patents ‘407 by his own co-inventor rights and his marital rights in Strickland’s co-inventor rights. “Certain incidents of patent ownership have been created or clarified by statute, see 35 U.S.C. § 262, yet the common law provided the basic rules, as 8 manifested in the concepts of tenancy in common and undivided interests that courts have drawn upon in patent ownership disputes.” Ethicon, Inc. v. U.S. Surgical Corp., 135 F.3d 1456, 1471 (Fed. Cir. 1998) “A divorce a mensa et thoro does not destroy the unity or entirety, but a divorce a vinculo does, as it destroys the unity and will convert the estate by entirety into one in common.” Turlington v. Lucas, 186 N.C. 283, 286 (N.C. 1923) Guiliano and Strickland finalized divorce on December 29th, 2023. Temporally, Guiliano’s presumed tenancy in common in Guiliano’s Patent ‘407 rights was established upon his novel conceptions since September 11, 2013, and established in Strickland’s conceptions upon marital separation on March 29th, 2020. If this Court finds 108Labs owns no expectant interests in Patent ‘407, Guiliano owns tenancy in common in any right inequitably possessed at Guiliano’s expense by Biomilq, Inc and other conscious wrongdoers after marital separation, because his trust res traces into all property inequitably possessed. Guiliano’s position is that his trust res begins at assignment, whether or not 108Labs owns expectant interests in Patent ‘407. In other words, Guiliano is conducting discovery into his own personal equitable and legal property rights and tortious claims which are legally and 9 equitably distinct from 108Labs rights and torts, including diminishment of his economic rights in 108Labs and presumed tenancy in common in any rights in Patent ‘407 inequitably held by third parties other than Strickland or 108Labs. VII. Guiliano’s marital trust res appears inevitable Cline established a 10-year statute of limitations on marital trust res, which only runs after dispossession of res property. Finally, we find no merit in defendant's contention that plaintiff's action is barred by the statute of limitations. "A resulting or constructive trust, as distinguished from an express trust, is governed by the ten-year statute of limitations. G.S. 1-56. . . . Moreover it is established by authoritative decisions of this Court that the statute of limitations does not run against a cestui que trust in possession." Bowen v. Darden, 241 N.C. 11, 17, 84 S.E.2d 289, 294 (1954). So long as an equitable owner retains possession, nothing else appearing, the statute of limitations does not run against him. Cline v. Cline, 297 N.C. 336, 348 (N.C. 1979) Guiliano noticed counterparties of intent to file motion for instantiating his trust res during phase I of discovery, proceeding with trust res tracing into Biomilq, Inc and conscious wrongdoers during phase II. The primary res controversy remaining is whether 108Labs may also establish a trust res by establishing an expectant ownership interest in all rights in Patent ‘407, but such finding would only change how Guiliano’s trust res operates without affecting the instantiation thereof. 10 Guiliano also pled separate tortious claims distinct from 108Labs which require separated discovery, such as alienation of affection, loss of consortium, defamation, slander of title, breach of marital duties, and pain and suffering. 108Labs is only a marital entity, and technically “shares” no rights or claims with Guiliano. VIII. Complexity is a fact and burden on Guiliano, not a construct of Guiliano’s This case is inherently complex by no fault of Guiliano but because of counterparty transaction fact patterns, the number of persons involved, the numerous applicable areas of law, and the novel commercial opportunities in cell-cultured milk emerging around the world in foods, nutraceuticals and therapeutic drugs, continuously revealing product opportunities exclusive to these inventions that are complex, diverse, valuable and relevant to Guiliano’s equitable claims discovery. Complex fact establishment and expert discovery is necessary to support Guiliano’s claims and prayers for relief by equitable disgorgement of unjust gains and tortious patent damages impacting the future of this monopoly. IX. Sufficient discovery of complex matters is not inherently prejudicial. 11 Guiliano doesn’t wish to diminish 108Labs discovery efforts in establishing expectant rights, nullity of assignment, and constructive trusts res instantiations by exercising his own discovery rights. Guiliano has identified 12 prospective deponents in his proposed first phase of discovery, ECF No. 271.3, Pg 29-30, to discover facts from early 2020 after separation and before assignment when he was being told by his newly estranged wife, Biomilq counsel Goodwin, and Biomilq CEO Egger that Biomilq, Inc would abandon the milk project, Guiliano co-inventive tenancy in common was not in question, BEV knew 108Labs was the owner, and Biomilq, Inc officers affirmed Biomilq, Inc would not use 108Labs property in Biomilq, Inc operations. See ECF No. 121.16. That so many persons and entities may have knowingly gained since then from interference in Guiliano’s family, family-run business and marital property rights is not Guiliano’s fault, but his burden. With this motion, Guiliano is requesting a right to separately conduct discovery to establish facts in support of his distinctly pled equitable wrongs and tortious claims, guided by certain rules and procedures of the Restatement (Third) of Restitution and Unjust Enrichment (2010), and other controlling and persuasive authorities on pled claims. X. Guiliano’s self-representation raises these issues newly 12 Perhaps the current order entered by former counsel made more sense before Guiliano discharged counsel previously shared with 108Labs, but it makes less sense now with Guiliano self-represented and Guiliano’s discovery stayed in 22CVD283 in deference to this prior pending action. As counterparties noted, the difference between sidedness with less-than-presumptive limits in the current order vs proposed order is 7/2 vs 12 Guiliano fact depositions, taking into account 0 depositions allowed in District Court which would otherwise be unlimited in time and quantity without stay. 3.5 depositions is less than the number of counterparties and insufficient to establish the trust res, much less trace it. Counterparties didn't argue why presumptive BCR limits are prejudicial, and Guiliano concludes BCR rules are well-considered. If counterparties find good cause later to limit Guiliano’s number of depositions below presumptive limits, they have a right to motion for protective order at any time under Rule 26. If Guiliano cannot maintain a courteous posture moving forward, Guiliano presumes this Court will fairly limit or completely end Guiliano’s right to discovery under Rule 26. Guiliano has a right to conduct his first depositions before concluding he may treat any deponent or deponent counsel discourteously during depositions. 13 While Guiliano has sent some discourteous emails to counterparty legal counsel in the past, Guiliano has also been reasonable much of the time, and usually consents to reasonable requests. Guiliano has substantively cooperated in discovery since onset of this action including consented digital forensics of personal devices, while counterparties have not substantively cooperated in discovery in either action, and have yet to confirm the backup of personal devices of Strickland and Egger, despite written demands since February 8th, 2022 to secure backups. Diligent efforts at conferral in both actions have yielded few disclosures or deposition cooperation by counterparties in discovery, whether requested by self-represented Guiliano, or by former counsels Mr. Kelly, Judge McGuire, Mr. Oswald, or Ms. Warwick, who is 108Labs’ current counsel. Much work remains. XI. Guiliano’s claims and discovery in this action do properly relate to his property claims in 22CVD283, and beyond Counterparties argue, “Rather than show good cause, Guiliano’s Motion mostly argues the merits of his equitable-distribution claims and focuses on discovery relating to those claims. (See id. at 11-17.) Those claims have been brought in a separate action, and discovery into them is not governed by this Court’s Case Management Order.” 14 Counterparties were granted stay of discovery in 22CVD283 with arguments that District Court is the wrong jurisdiction for Guiliano to conduct discovery of conscious wrongdoing. And this Court found “a party may file an action in superior court concerning property involved in the District Court Action, see, e.g., Baldelli v. Baldelli, 249 N.C. App. 603, 608 (2016), and Jessee v. Jessee, 212 N.C. App. 426 (2011)” See ECF No. 288. Guiliano filed claims here concerning transactions related to property involved in the District Court action, but he has not filed his claim for equitable distribution here, and this Court denied his motion for joint consolidation of common transactions across the actions. Guiliano’s tortious and equitable claims filed here establish a broad scope of discovery related to tortious interference and post-separation unjust enrichment from inequitably possessing property in which he either owns beneficial economic interests through 108Labs, or legal and equitable tenancy in common by co-conception and marriage to Strickland. At present, there is no other jurisdiction where he may conduct discovery into inequitable possession and tortious interference in interests created or acquired during his marriage to Strickland, or after. The zero sum game in the current order disfavors parties on the side with the most claims against the most parties, and prejudicial to 108Labs and Guiliano 15 considering they don’t have the same claims or interests or remedies in properties in controversy. XII. Guiliano did confer per BCR 7.3 As counterparties detailed, Guiliano conferred with counterparties as obligated under BCR 7.3. Guiliano explained three modest changes which succinctly described his motion, and sent another courtesy email at 10:44am before deadline: Sending this out again for everyone's convenience. Please respond within the next hour if you wish to state a position on amending the case management order. Rather than stating a position, Biomilq, Inc demanded Guiliano disclose the motion before stating a position. BCR 7.3 does not appear to require disclosing a proposed motion, and does not require movants agree to delay upon such demand. Guiliano disagrees he violated the BCR rule on motion conferral by holding firm on deadline. This modest motion proposes essential changes to separate his discovery from 108Labs, with motions and briefs hopefully deemed free of discourteousness, as ordered since his last discourteous conduct. 16 Further, counterparties have not reciprocated to requests for drafts, such as their amended counter-complaint, for example, which they requested consent without agreeing to produce a draft, before Guiliano consented. Is it discourteous to not produce drafts during motion conferral? Irrespective of whether disclosure is courteous or obligated, Guiliano disclosed the draft to confirm his detailed notes accurately reflect the changes, but re-affirmed his response deadline. Guiliano then gave an extra 90 minutes to respond, and filed at 1:31pm. Guiliano admits his response weeks ago to Biomilq, Inc’s demand for disclosure and delay was discourteous, and appears self-defeating, but hopefully unrepeated any further, and less relevant to the merits of procedural concerns in interdependent discovery limits caused by sidedness which causes 108Labs and Guiliano to unfairly compete for already-less-than-presumptive discovery rights. XIII. Prospective costs of discovery over complex matters are not prejudicial to counterparties who may have unjustly benefited therefrom Limitations on Frequency and Extent. - The frequency or extent of use of the discovery methods set forth in section (a) shall be limited by the court if it determines that: …(iii) the discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties' resources, and the importance of the issues 17 at stake in the litigation. The court may act upon its own initiative after reasonable notice or pursuant to a motion under section (c). Rule 26(b)(1a) The needs of this case appear extraordinary, with counterparties and patent rights spread around the world, and many obvious essential documents, facts, and transactions yet to be discovered. Guiliano concludes 10-12 depositions may be necessary to impose trust res on assignment of Patent ‘407, based on evidence already in hand. Tracing the res to completion into Biomilq, Inc and other conscious wrongdoers may require more depositions considering the ~100 man-years of research conducted by Biomilq, Inc since 2020. The amount in controversy is substantial. A minimal presumptive disgorgement claim may be $25,000,000, based on third party cash payments to Biomilq, Inc at the expense of Guiliano and 108Labs rights. Biomilq, Inc paper of value was allegedly worth $85,000,000, post-money, establishing a preliminary equitable ceiling, pending expert discovery. Counterparties allegedly held 70-80% of shares in Biomilq, Inc upon countersuit. Intrinsic value of tortious patent damages may eclipse equitable damages. The average value of NDA-approved single-drug companies typically exceeds a billion dollars2, and biosynthetic human milk yields a promising drug pipeline.3 4 2 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8854317/ 3 https://www.sciencedirect.com/science/article/pii/S0002916523058227#:~:text=Human%20milk%20prote ins%20also%20exert,the%20gut%20and%20its%20 functions 4 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3586783/#:~:text=Human%20milk%20also%20contains% 20many,investigated%20as%20novel%20therapeutic%20agents. 18 Revenue potential for human infant formula in 20 years may be tens of billions of dollars with 10% market share5. Cell-cultured bovine milk for production of alternative cheese may dominate alternative cheeses eventually.6 Exclusive commercial value in controversy is potentially enormous and credible, and may explain motive. Biomilq, Inc and Guiliano appear to publicly agree on prospective value.7 Counterparties are apparently backed by wealthy investors, clarifying their resources.8 The importance of the invention of cell-cultured human milk is not easily overstated. Cell-cultured human milk may supply the first human milk molecules considered “safe to consume“ without pasteurization because it’s the first human milk produced in pathogen-free conditions.9 Biosynthetic molecules isolated from mammary cell culture may impact infant health with new therapeutic treatments including orphaned drug indications in preterm care10, cancer11, and other immunocompromised populations12. Considering factors under Rule 26(b)(1a), the Court may fairly lean towards expanding and separating discovery of 108Labs and Guiliano rather than limiting discovery of either at this time. 5 https://www.gminsights.com/industry-analysis/infant-formula-market 6 https://www.futuremarketinsights.com/reports/cheese-alternative-market 7 https://qz.com/artificial-breast-milk-biomilq-lab-grown-1851095589 8 https://www.prnewswire.com/news-releases/novo-holdings-leads-us21m-series-a-financing-in-biomilq-30 1404490.html 9 Milk derived from any mammal, humans included, is not pathogen free. 10 https://www.mdpi.com/2072-6643/9/8/817 11 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8248127/ 12 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7926697/ 19 Guiliano has not yet received substantive discovery documents nor cooperation in depositions which would reflect a substantial start to discovery in either action. Guiliano prays this motion be granted to end sidedness to separately limit discovery rights so he may diligently pursue fact discovery without interfering with 108Labs discovery upon entry of a new case management schedule. Table of Authorities 1. Baldelli v. Baldelli, 249 N.C. App. 603, 608 (2016) 2. Bowen v. Darden, 241 N.C. 11, 17, 84 S.E.2d 289, 294 (1954) 3. Cleary v. Bolger, 371 U.S. 392, 83 S. Ct. 385 (1963) 4. Cline v. Cline, 297 N.C. 336, 348 (N.C. 1979) 5. Elmer Co. v. Kemp, 9 Cir., 67 F.2d 948 6. Ethicon, Inc. v. U.S. Surgical Corp., 135 F.3d 1456, 1471 (Fed. Cir. 1998) 7. Filmtec Corp. v. Allied-Signal Inc., 939 F.2d 1568, 1572 (Fed. Cir. 1991) 8. Flannery v. Flannery Bolt Co., 108 F.2d 531, 534 (3d Cir. 1940) 9. Funchion v. Somerset Knitting Company, 158 F. Supp. 57, 62 (M.D.N.C. 1958) 10. Jessee v. Jessee, 212 N.C. App. 426 (2011) 11. Pennell v. Deffell, 4 DeGex, M. G. 372, 388 (1854) 12. Republic Supply Co. v. Richfield Oil Co., 9 Cir., 79 F.2d 375, 377 13. Restatement (Third) of Restitution and Unjust Enrichment (2010) 14. Sparks v. Peacock, 129 N.C. App. 640, 642 (N.C. Ct. App. 1998) 15. Turlington v. Lucas, 186 N.C. 283, 286 (N.C. 1923) 16. United States v. Dunn, 268 U.S. 121, 45 S.Ct. 451, 69 L.Ed. 876 17. Vorlander v. Keyes, 8 Cir., 1 F.2d 67 20 RULE 7.8 CERTIFICATION The undersigned hereby certifies that the foregoing Reply Brief does not exceed 3,750 words and complies with the provisions of BRC 7.8. This the 7th day of February, 2024. /s/ Shayne Guiliano Shayne Guiliano Defendant and Counterclaim Plaintiff 141 W. King St. Hillsborough, NC 27278 Telephone: 919-450-7226 autonomous@gmail.com CERTIFICATE OF SERVICE I hereby certify that, pursuant to Rule 3.9(a) of the Business Court Rules, the foregoing document was filed this day using the Court’s electronic filing system and has been served to all counterparty counsel through the issuance of a Notice of Filing. This 7th day of February 2024 /s/ Shayne Guiliano Shayne Guiliano Defendant and Counterclaim Plaintiff 141 W. King St. Hillsborough, NC 27278 Telephone: 919-450-7226 autonomous@gmail.com 21