198) setting procedures for review of the appointed Special Master Judge Vanaskie’s Report and

Recommendations, and having reviewed Judge Vanaskie’s July 17, 2023 Special Master

compel Plaintiffs to identify witnesses they intend to serve with trial subpoenas, following oral

subpoenas, independently finding a substantial basis to adopt and approve Judge Vanaskie’s

Plaintiffs intend to serve with trial subpoenas seventy-two hours before attempting service of the

AND NOW,this 11" day of July 2023, upon considering Plaintiffs’ Motion (ECF Doc. No. 951) to preclude Defendants from offering live witnesses who may notbeavailable for live testimony during Plaintiffs’ case-in-chief but Plaintiffs do not represent the Defendant’s position required under our Policies, mindful the parties have over a month to confer before filing motions affecting presentations at trial, and for good cause as previewed in our Policies, it is ORDEREDPlaintiffs’ Motion (ECF Doc. No 951) is DENJED without prejudice.

' We expect counsel meaningfully confer before burdening our docket and requiring the other side to run around to answer.

Andif not successful in resolving their concerns, they need to demonstrate why they cannot subpoena Defendants’ witnesses under Federal Rule of Civil Procedure 45.

It appears some of the corporate representatives may be in Pennsylvania or within one hundred miles of our Courthouse in New Jersey or Delaware.

We will require witnesses appear once and not be recalled with proper subpoena notice or consent unless in rebuttal case upon a showing of specific good cause on issues not able to be addressed in the case-in-chief.

Seeing this pattern of misrepresentation arise on the second page of Plaintiffs’ Brief in Opposition is truly baffling but demonstrates the continued deleterious conduct that Plaintiffs argue is nonexistent.

.to conceal misconduct, evade accountability, and burden Plaintiffs with the cost of countering baseless arguments while distorting the record and misleading the Court.” (Opposition, pp. 1-2).

Plaintiffs’ Opposition serves merely to continue to harass and maliciously injure Shell, TNE and their counsel and has been filed for an improper purpose, including, but not limited to, causing unnecessary delay or a needless increase in the cost of litigation.

Plaintiffs have failed to set forth any new legal arguments made by Shell and TNE within their Reply Memorandum in Support of their Motion to Dismiss.

Such bad faith tactics by Plaintiffs and their counsel have caused an unnecessary delay and a needless increase in the cost of litigation for Shell and TNE.

Based on the foregoing, Shell and TNE respectfully renew their request that this Court strike and deny Plaintiffs’ Motion for Sanctions and for Leave to File Surreply in its entirety.

... A. Plaintiffs admit to citing “nonexistent cases” without adequate explanation, and fail to explain other unmistakable fabrications. Plaintiffs’ counsel admit that they cited fake case law to the Court—what they characterize as “nonexistent ...

) Six nonexistent cases is six too many, but there were nine. Plaintiffs apparently contend that the other three cases identified as “Nonexistent Court Decisions” in Verifone’s Motion to Strike (at 4–5) actually exist because there are real ...

[Signature page follows] 6 Plaintiffs refer to a nonexistent “safe harbor provision” under Rule 11 (Opp’n at 2). While such a provision exists in the Federal Rule, there is none the Ohio Rule, which applies here.

Plaintiffs’ citations to federal case law serve a clear and legitimate purpose: establishing universally accepted principles of due process and fairness that apply to reply briefs.

Similarly, in Kyser v. Summit County Children Services, 2022-Ohio-1207 (Ohio Ct. App.), the appellate court affirmed a trial court’s discretion to permit surreplies when fairness demands it, particularly in response to new arguments introduced in reply briefs.

Shell’s reply brief introduces numerous new arguments, including substantive claims regarding the Retail Sales Agreement (RSA) and a demand to strike twenty-six points related to Plaintiffs’ opposition.

2323.51 provides a broader framework for sanctioning actions lacking legal or factual basis, intended to harass or injure, or unsupported by a good faith argument for extending, modifying, or reversing existing law.

“Bad faith” under Rule 11 goes beyond bad judgment or negligence, encompassing dishonest purposes, moral obliquity, breaches of duty motivated by ill will, and actions akin to fraud with intent to mislead or deceive.

11, a court can impose sanctions only when the attorney or pro se litigant acts willfully and in bad **1277 faith by filing a pleading that he or she believes lacks good grounds or is filed merely for the purpose of delay.” State ex rel.

Rule 11 further requires that sanctions be commensurate with the nature and extent of the alleged misconduct, and its safe harbor provision encourages the courts to permit corrections to errors rather than imposing punitive measures.

As noted here, in New York Caselaw and Civil Practice Law and Rules (CPLR) § 3126, the remedy of striking a pleading is reserved for cases where a party has engaged in a long-standing pattern of willful or contumacious failure to comply with discovery demands or orders.

4 “The Eighth District Court of Appeals by contrast held that where a design professional was "extensively involved in supervision and administration * * * reasonable minds could find that a sufficient nexus existed between the parties to substitute for privity of contract."

The underlying arguments remain grounded in the principle that Ohio courts favor fairness and the development of a complete record, even if the specific cases cited were misplaced in this instance.