BIOMILQ, INC. v. GUILIANO, 2024 NCBC 16

STATE OF NORTH CAROLINA
ORANGE COUNTY
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
22 CVS 255
BIOMILQ, INC.,
Plaintiff and
Counterclaim Defendant,
v.
SHAYNE GUILIANO and 108LABS,
LLC,
Defendants and
Counterclaim Plaintiffs,
v.
MICHELLE EGGER;
BREAKTHROUGH ENERGY
VENTURES, LLC; BEV JOHN DOES;
and BIOMILQ JOHN DOES,
Counterclaim Defendants.
ORDER AND OPINION ON
GUILIANO’S MOTION FOR RULE 60
RELIEF FROM JUDGMENT
1. 	THIS MATTER is before the Court on the 19 December 2023 filing of
Defendant Shayne Guiliano’s (“Mr. Guiliano”) Motion for Rule 60 Relief From
Judgment (the “Motion”).1 (ECF No. 239 [“Mot.”].) Pursuant to Rule 60 of the North
Carolina Rules of Civil Procedure (the “Rule(s)”), the Motion requests reconsideration
of “the Order and Opinion on Defendants’ joint partial motion to dismiss [P]laintiff’s
second amended complaint and reconsideration of Rule 12(b) Motions already filed,
or in the alternative[,] consider a new motion for Rule 12(g) dismissal by adopting
already filed Rule 12(h)(2) defenses herein.” (Mot. 1.)
1 Pursuant to North Carolina Business Court Rule (“BCR”) 7.4, the Court, in its discretion,
elects to decide the Motion without oral argument.
BIOMILQ, INC. v. Guiliano, 2024 NCBC 16.

Robinson, Bradshaw & Hinson, P.A., by J. Dickson Phillips and Stephen
D. Feldman, and Goodwin Procter, LLP, by Rachel M. Walsh, for
Plaintiff BIOMILQ, Inc.
Shayne Guiliano, pro se.
Robinson, Judge.
2. 	As 	an 	initial matter, 	Rule 60(b) applies 	only to 	relief 	“from 	a final
judgment.” N.C.G.S. § 1A-1, Rule 60(b). To be clear, Rule 60(b) “has no application
to interlocutory judgments, orders, or proceedings of the trial court. 	It only applies,
by its express terms, to final judgments.” 	Sink v. Easter, 288 N.C. 183, 196 (1975)
(citation omitted); Rupe v. Hucks-Follis, 170 N.C. App. 188, 191 (2005).
3. 	The Court’s order denying Defendants’ motion to dismiss, (ECF No. 145),
was an interlocutory order, (see ECF No. 221). 	Therefore, the Court does not have
the authority to grant relief from it under Rule 60(b). 	Rupe, 170 N.C. App. at 191.
The Motion is therefore DENIED in part to the extent it seeks reconsideration under
Rule 60(b).
4. 	Next, the Court addresses Mr. Guiliano’s request that the Court enter an
order 	“which 	either 	treats 	Guiliano’s 	most 	recent 	Rule 12(b)(6) 	as 	a
Rule 12(g)+Rule 12(h)(2) defense, or otherwise grants [Mr.] Guiliano an opportunity
to enter a clean and simpler Rule 12(g)+Rule 12(h)(2) Motion[.]” (Br. Supp. Mot. 17,
ECF No. 240 [“Br. Supp.”].)
5. 	Rule 12(g) provides that “[i]f a party makes a motion under [Rule 12] but
omits therefrom any defense or objection then available to him which this rule
permits to be raised by motion, he shall not thereafter make a motion based on the

defense or objection so omitted, except a motion as provided in section (h)(2) hereof
on any of the grounds there stated.” 	N.C.G.S. § 1A-1, Rule 12(g). 	Rule 12(h)(2)
provides, in relevant part, that “[a] defense of failure to state a claim upon which
relief can be granted, a defense of failure to join a necessary party, and an objection
of failure to state a legal defense to a claim may be made in any pleading permitted
or ordered under Rule 7(a)[.]” Id. Rule 12(h)(2).
6. 	Plaintiff BIOMILQ, Inc. argues that a new motion under Rule 12(b)(6)
pursuant to Rules 12(g) and (h)(2) would be improper because those rules “do not
authorize or permit a party to make a pre-trial motion under Rule 12(b)(6) after the
party has answered.” (Br. Opp’n Mot. 3, ECF No. 249 [“Br. Opp.”].) The Court agrees
and otherwise declines to reconsider its 13 November 2023 Order and Opinion. (See
ECF No. 221.)
7. 	THEREFORE, the Court, in its discretion, DENIES the Motion.
IT IS SO ORDERED, this the 29th day of February, 2024.
/s/ Michael L. Robinson
Michael L. Robinson
Special Superior Court Judge
for Complex Business Cases