Petition for Writ of Certiorari — Ryan Wollner, Petitioner v. Pearpop Inc.
Supreme Court briefMar 10, 2023
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APPENDIX TABLE OF CONTENTS
Opinions and Orders
Order of the Supreme Court of the
State of Delaware (December 13, 2022)
la
Order of the Supreme Court of the
State of Delaware (August 8, 2022)
3a
Order of the Supreme Court of the
State of Delaware (July 21, 2022)
4a
Final Order and Judgment of the
Court of Chancery of the State of
Delaware (July 21, 2022)............
8a
Final Opinion of the Court of Chancery
of the State of Delaware (June 21, 2022)
11a
Constitutional and Statutory Provisions
Constitutional and Statutory Provisions
Involved..................................... ........
30a
Other Documents
Denied Proposed Order to Compel Litigation
Expenses in Accordance With the Bylaws
of Pearpop (August 29, 2022)......................
45a
Denied Proposed Order to Compel Disclosures
and Sanctions (August 24, 2022)...............
48a
Oral Argument and Rulings of the Court on
Defendant’s Motion to Compel and Motion for
a Protective Order Held via Zoom
(July 12, 2021)................................................... 52a
APPENDIX TABLE OF CONTENTS (Cont.)
Judicial Action Form of Defendant’s Motion to
Compel and Motion for a Protective Order
(July 12, 2021)................................................... 56a
Judicial Action Form of the Court’s Ruling on
Bellew LLC’s Motion to Withdraw as Counsel
(May 14, 2021)................................................... 57a
Transcript of Telephonic Hearing on Bellew
LLC’s Motion for Leave to Withdraw as
Counsel (April 28, 2021)................................... 58a
Audio Recording Between Plaintiff and Initial
Member 3 Transcript (June 8, 2020).............. 61a
Audio Recording of Call Between Plaintiff and a
Purported Spencer Markel, Transcript
(September 11, 2020)........................................ 62a
App.la
ORDER OF THE SUPREME COURT
OF THE STATE OF DELAWARE
(DECEMBER 13, 2022)
IN THE SUPREME COURT OF THE
STATE OF DELAWARE
RYAN WOLLNER,
Plaintiff Below,
Appellant,
v.
PEARPOP INC.,
Defendant Below,
Appellee.
No. 257, 2022
Court Below Court of Chancery of the
State of Delaware C.A. No. 2021-0157
Before: Gary F. TRAYNOR, Justice.
It appears to the Court that, on November 4, 2022,
the Chief Deputy Clerk issued a notice, by certified
mail and through File & ServeXpress, directing the
appellant to show cause why his appeal should not
be dismissed for his failure to file an opening brief
and appendix. The opening brief and appendix were
due by October 13, 2022. Postal records confirm that
the notice to show cause was delivered on November
App.2a
8, 2022. A timely response to the notice to show cause
was due on or before November 18, 2022. To date, the
appellant has not filed an opening brief or responded
to the notice to show cause. Dismissal of this appeal
is therefore deemed to be unopposed.
NOW, THEREFORE, IT IS ORDERED, under
Supreme Court Rules 3(b)(2) and 29(b), that this appeal
is DISMISSED.
BY THE COURT:
/s/ Gary F. Travnor
Justice
App.3a
ORDER OF THE SUPREME COURT
OF THE STATE OF DELAWARE
(AUGUST 8, 2022)
IN THE SUPREME COURT OF THE
STATE OF DELAWARE
RYAN WOLLNER
v.
PEARPOP INC.
No. 236, 2022
Court Below - Court of Chancery of the
State of Delaware C.A. No. 2021-0157
The following docket entry has been efiled in the
above cause.
August 8, 2022. Certified copy of Order dated July 21,
2022, to Clerk of Court Below. Case
closed.
cc: The Honorable Kathaleen St. J. McCormick
Mr. Ryan S. Wollner
John L. Reed, Esquire
Ronald N. Brown, III, Esquire
Kelly L. Freund, Esquire
/s/ Lisa A. Dolph______
Clerk of Supreme Court
Date: August 8, 2022
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ORDER OF THE SUPREME COURT
OF THE STATE OF DELAWARE
(JULY 21, 2022)
IN THE SUPREME COURT OF THE
STATE OF DELAWARE
RYAN WOLLNER,
Plaintiff Below,
Appellant,
v.
PEARPOP INC.,
Defendant Below,
Appellee.
No. 236, 2022
Court Below-Court of Chancery of the
State of Delaware C.A. No. 2021-0157
Before: VAUGHN, TRAYNOR, and MONTGOMERYREEVES, Justices.
Upon consideration of the notice to show cause and
the appellant’s response, it appears to the Court
that:
(1) On July 6, 2022, Ryan Wollner, filed a notice
of appeal from a Court of Chancery letter decision,
dated June 21, 2022, granting PearPop, Inc.’s motion
for default judgment and finding Wollner responsible
App.5a
for some of PearPop’s attorneys’ fees. The decision
directed PearPop to prepare a form of final order.
After issuance of the June 21 decision, Wollner filed
multiple documents in the Court of Chancery, including
a motion to stay pending appeal and a letter requesting
removal of the Chancellor from the case.
(2) On July 7, 2022, the Senior Court Clerk issued
a notice directing Wollner to show cause why this
appeal should not be dismissed for his failure to
comply with Supreme Court Rule 42 when taking an
appeal from an apparent interlocutory order. On July
9, 2022, the Court of Chancery denied Wollner’s request
for removal. As to the motion to stay, the court found
there was nothing to stay, except for the award of
attorneys’ fees. The court directed PearPop to submit,
within five business days, a proposed form of final
order reflecting the attorneys’ fees requested and to
state its position with respect to the motion to stay
and the amount of any required security. Wollner
then filed letters disagreeing with the court’s denial
of his request for removal and demanding an
investigation by the Department of Justice.
(3) In his response to the notice to show cause in
this Court, Wollner primarily argues the merits of
his appeal. He also contends that the requirements
of Supreme Court Rule 42 for interlocutory appeals
should not apply because it is taking too long for
issuance of a final order in the Court of Chancery.
(4) Absent compliance with Rule 42, this Court is
limited to the review of a trial court’s final judgment. 1
An order is deemed final and appealable if the trial
1 Julian v. State, 440 A.2d 990, 991 (Del. 1982).
App.6a
court has declared its intention that the order be the
court’s final act in disposing of all justiciable matters
within its jurisdiction.2
(5) The June 21 decision (and July 9 decision)
required further action by PearPop. The amount of
attorneys’ fees that Wollner is responsible for remains
unresolved. Because the June 21 decision did not
finally determine and terminate the Court of Chancery
proceedings and those proceedings remain ongoing,
this appeal is interlocutory.
(6) Wollner is not exempt from the requirements
of Rule 42. He complains that it is taking too long for
issuance of a final order, but it has been less than
thirty days since the June 21 decision and less than
fourteen days since the July 9 decision. According to
the Court of Chancery docket, PearPop filed a proposed
form of final order with its attorneys’ fees yesterday.
Wollner has also continued to make demands for
action in the Court of Chancery. As there is presently
no final judgment in the Court of Chancery and
Wollner has not complied with Rule 42, this appeal
must be dismissed.
NOW, THEREFORE, IT IS ORDERED that this
appeal is DISMISSED. The filing fee paid by Wollner
shall be applied to any future appeal he files from a
final order entered in the case.
2 J.I. Kislak Mortg. Corp. v. William Matthews, Builder, Inc.,
303 A.2d 648, 650 (Del. 1973).
App.7a
BY THE COURT:
/s/ Gary F. Travnor
Justice
App.8a
FINAL ORDER AND JUDGMENT OF
THE COURT OF CHANCERY OF
THE STATE OF DELAWARE
(JULY 21, 2022)
IN THE COURT OF CHANCERY OF
THE STATE OF DELAWARE
RYAN WOLLNER,
Plaintiff,
v.
PEARPOP INC.,
Defendant.
C.A. No. 2021-0157-KSJM
WHEREAS:
A. On February 22, 2021, Plaintiff filed a Verified
Complaint to Compel Inspection of Books and Records
(the “Verified Complaint”).
B. On July 12, 2021, the Court Granted Defendant’s
motion to compel.
C. On October 11, 2021, Defendant filed its Motion
For Default Judgment.
D. On October 24, 2021, Plaintiff filed his Motion
to Vacate the Courted Ordered Motion to Compel,
Motion for a Protective Order, and Deny the
App.9a
Defendants’ Motion for a Default Judgment (the
“Motion to Vacate”).
E. On June 21, 2022, following briefing and
argument on the Motion for Default and the Motion
to Vacate, the Court issued a letter decision (i) granting
Defendant’s Motion For Default Judgment, (ii) denying
Plaintiffs Motion to Vacate, (iii) awarding Defendant
its attorneys’ fees and expenses since the date of July
12, 2021 ruling, and (iv) denying Plaintiffs pending
motions filed since the March 25, 2022 hearing (the
“Letter Opinion”).
F. On July 15, 2022, counsel for Defendant
submitted an affidavit in compliance with Court of
Chancery Rule 88. The Court has reviewed counsel’s
affidavit and does not believe that additional support
is required. Although this action has involved unique
complexities, the Court views the amount requested
through fee-shifting as slightly disproportionate to
the needs of this action. For this reason, the amount
of Defendant’s attorneys’ fees and expenses to be
paid by Plaintiff is capped at $100,000.
NOW, THEREFORE, IT IS HEREBY ORDERED,
for the reasons explained in the Court’s June 21,
2022 Letter Opinion:
1. Defendant’s Motion for Default Judgment is
GRANTED;
2. Plaintiffs Motion to Vacate is DENIED;
3. Plaintiffs other motions filed between March
25, 2022 and June 21, 2022 are DENIED;
4. Plaintiffs Verified Complaint is hereby
DISMISSED with prejudice; and
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5. Defendant is awarded its reasonable attorneys’
fees and costs in the amount of $100,000.
Is/ Kathaleen St. J. McCormick_____
Chancellor Kathaleen St. J. McCormick
Dated: July 21, 2022
App.lla
FINAL OPINION OF THE COURT OF
CHANCERY OF THE STATE OF DELAWARE
(JUNE 21, 2022)
EFiled: Jun 21 2022 10:21AM EDT
Transaction ID 67743212
Case No. 2021-0157-KSJM
COURT OF CHANCERY
OF THE STATE OF DELAWARE
Kathaleen St. Jude McCormick
Chancellor
Leonard L. Williams Justice Center
500 N. King Street, Suite 11400
Wilmington, Delaware 19801-3734
June 21, 2022
Ryan Wollner
By Email
John L. Reed, Esquire
Ronald N. Brown, III, Esquire
Kelly L. Freund, Esquire
DLA Piper LLP (US)
1201 N. Market Street, Suite 2100
Wilmington, DE 19801
Re: Ryan Wollner v. PearPop Inc., C.A. No. 20210157-KSJM
Dear Mr. Wollner and Counsel:
This letter resolves the defendant’s motion for
default judgmentl and the plaintiffs competing
(combined) motion to vacate the order to compel, motion
1 C.A. No. 2021-0157-KSJM, Docket (“Dkt.”) 78 (“Def.’s Mot.”).
App.l2a
for a protective order, and opposition to the motion
for default judgment.2
As background, Plaintiff Ryan Wollner filed this
action under Section 220 of the Delaware General
Corporation Law to inspect books and records to
investigate Defendant PearPop Inc.’s June 5, 2020
conversion from an LLC into a corporation. Wollner
alleges that the conversion violated his rights as a
purported 5% equity holder, “Initial Member,” and
“Manager” of the pre-conversion LLC.3 Wollner served
his Section 220 demand on December 31, 2020.4
In response to the Section 220 demand, PearPop
agreed to produce books and records conditioned on
Wollner signing a confidentiality agreement, which
the parties executed in late January 2021.5 PearPop
then produced documents pursuant to the confident
iality agreement. Wollner viewed this production as
insufficient and initiated this Section 220 action on
February 22, 2021.6 PearPop agreed to expedited
treatment of the case and the parties stipulated to a
schedule setting trial for April 28, 2021.7
On March 17, 2021, Wollner served 85 interro
gatories and 85 requests for production on PearPop
and noticed a deposition of PearPop pursuant to Court
2 Dkt. 82 (“Pl.’s Mot.”).
3 Dkt. 1 (“Compl.”) ft 1-2.
4 Id. Ex. J.
5 Def.’s Mot. Ex. A.
6 Compl.
7 Dkt. 11, Scheduling Order.
App.l3a
of Chancery Rule 30(b)(6).8 PearPop responded to the
written discovery requests on March 26, 2021, but
moved for a protective order on March 28, 2021,
arguing that the noticed deposition topics were
overbroad.9 Also on March 28, PearPop filed
declarations from two of its directors attesting to the
authenticity of some of the documents that PearPop
had produced, which Wollner had apparently disputed
while meeting and conferring with PearPop’s counsel
concerning discovery. 1°
On April 1, 2021, Wollner’s initial counsel moved
to withdraw.!! According to the motion to withdraw,
Wollner refused to provide document discovery to his
own attorney and then represented to PearPop that
he was “temporarily suspending” his counsel.l2
Corroborating this story, PearPop filed a motion to
compel the next day, arguing that Wollner had refused
to respond to interrogatories or produce any docu
ments.!3
On April 28, 2021,1 held a telephonic hearing on
Wollner’s counsel’s motion to withdraw and gave
Wollner ten additional days to find new counsel before
8 Dkt. 21, Freund Aff. Ex. 1-3; Dkt. 14.
9 Dkt. 20, Def.’s Mot. for Protective Order.
10 Dkt. 22, Decl. of Cole Mason; Dkt. 23, Decl. of Michael
Shvartsman.
11 Dkt. 25, First Mot. to Withdraw.
12 Id. 1H 1-2; Dkt. 38, Apr. 28, 2021 Tr. at 4:17.
13 Dkt. 26, Mot. to Compel.
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ruling on the motion.I4 I granted the motion to
withdraw on May 14, 2021.15
Through the remainder of May and early June,
Wollner directly engaged with PearPop’s counsel in
discussions regarding the scope of discovery. 16 On
May 20, 2021, Wollner forwarded PearPop a settlement
offer that attached a document produced to him by
PearPop, suggesting that the document was fully
responsive to “probably half or more of the evidence
[PearPop was] requesting” in its motion to compel. I7
On May 22, 2021, Wollner sent PearPop three audio
recordings he had taken of a couple of PearPop’s
principals.!8 On June 11, 2021, Wollner’s second set of
counsel entered an appearance and later filed
oppositions to PearPop’s pending motions.I9
On July 12, 2021, I held a hearing on PearPop’s
pending motions to compel and for a protective order.
Because Wollner had withdrawn his discovery requests
by that time, I denied the motion for a protective order.
PearPop pressed its request to shift fees in connection
with that motion, which I also denied.29 I then granted
PearPop’s motion to compel (the “Discovery Ruling”),
14 Dkt. 38, Apr. 28, 2021 Tr. at 14:14-22.
15 Dkt. 40, May 14, 2021 Tr. at 5:1-2.
16 See Dkt. 53, Reply in Supp. of Def.’s Mot. for Protective Order
Ex. 8-14.
17 Dkt. 54, Reply in Supp. of Def.’s Mot. to Compel Ex. 13 at 4-6.
18 Id. at 3.
19 Dkt. 46, Entry of Appearance; Dkt. 48, Opp’n to Mot. for Pro
tective Order; Dkt. 51, Opp’n to Mot. to Compel.
20 Dkt. 60, July 12, 2021 Tr. at 23:2-21.
App.l5a
despite some discomfort with the breadth of the
requested discovery, but denied it to the extent that
it sought to shift fees.21 Following my bench ruling, I
instructed Wollner to “dig deep and do his best to
respond to all the requests propounded and to do so
promptly given the delays that have occurred in this
proceeding in large part due to [his] conduct and
inability to retain counsel.”22
Given that I had granted the motion to compel
and that Wollner was being advised by counsel, I
believed that discovery would proceed apace and that
this case was back on track. Eight days after that
hearing, however, Wollner’s new counsel filed a motion
to withdraw, informing the court that Wollner had
discharged him.23
On September 13, 2021, Wollner filed a motion
for a protective order regarding the discovery requests
at issue in the Discovery Ruling. 24 The motion also
sought to compel more complete responses to his
interrogatories and other discovery requests, privilege
logs, fees, and sanctions.25 Wollner publicly filed a
number of exhibits with this motion, which PearPop
had produced to him pursuant to the confidentiality
agreement the parties entered before the commence-
21 Id. at 25:2-24.
22 Id. at 26:6-10.
23 Dkt 59 Second Mot to Withdraw.
24 Dkt. 63, Pl.’s Mot. for a Protective Order.
25 Id.
App.l6a
ment of this litigation, despite never seeking PearPop’s
permission to do so.26
I granted the second motion to withdraw at a
hearing on September 20, 2021, after which Wollner
proceeded pro se. By that time, Wollner had not
produced any documents since I had entered the
Discovery Ruling. I nevertheless gave Wollner another
opportunity to comply with his obligations, again
directly instructing him to do so during the hearing.27
On September 22, 2021, Wollner informed PearPop
that he would only produce documents if PearPop
signed a “one way confidentiality agreement,” rather
than the standard confidentiality stipulation based
on the Court of Chancery’s form.28 On September 23
and 24, 2021, Wollner filed letters to the court to this
effect, arguing that he was concerned about how any
discovery he provided to PearPop could be used against
him.29 On September 29, 2021, Wollner voluntarily
withdrew his motion for a protective order. 30
The parties met and conferred at some length
regarding Wollner’s discovery obligations, particularly
with regard to responding to interrogatories, between
late September and early October 2021. Wollner sent
several versions of his interrogatory responses to
PearPop in that timeframe, which PearPop informed
26 Dkt. 64; Def.’s Mot. at 6.
27 Dkt. 75, Sept. 20, 2021 Tr. at 6:8-17, 7:19-22.
28 Def.’s Mot. Ex. C.
29 Dkt. 72; Dkt. 73.
30 Dkt. 74.
App.l7a
him were deficient in several respects.31 On October 4,
2021, Wollner filed the final version of his interrogatory
responses.32 These interrogatory responses, in addition
to the single email and three edited audio recordings,
remain the only discovery that Wollner has provided
PearPop in this litigation.
Based on Wollner’s repeated failure to adhere to
his discovery obligations, PearPop moved for a default
judgment and fee-shifting under Court of Chancery
Rule 37 on October 11, 2021.33 Just over a week later,
the plaintiff filed a combined motion to vacate the
order to compel under Court of Chancery Rule 60(b),
motion for a protective order, and opposition to the
motion for default judgment.34 The parties completed
briefing on the competing motions by November 30,
2021, and I heard oral argument on March 25, 2022.35
I first address PearPop’s motion for default
judgment. The Delaware Supreme Court “has long
recognized that the purpose of discovery is to advance
issue formulation, to assist in fact revelation, and to
reduce the element of surprise at trial.”36 “Scheduling
orders and discovery cutoffs further these important
purposes and policies by ensuring that parties provide
discovery in a timely fashion, thereby avoiding trial
31 Def.’s Mot. Ex. D-E.
32 Dkt. 77, Pl/s Resps. to Def.’s First Set of Interrogs.
33 Def.’s Mot.
34 PL’s Mot.
35 Dkt. 112, Mar. 25, 2022 Tr.
36 Levy v. Stern, 687 A.2d 573, 1996 WL 742818, at *2 (Del.
Dec. 20, 1996) (TABLE).
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by surprise and the prejudice that results from
belated disclosure.’^? “Parties must be mindful that
scheduling orders are not merely guidelines but have
the same full force and effect as any other court
order.”38 “A party that disregards the provisions in a
scheduling order that govern discovery is engaging in
discovery abuse. If a party cannot meet a deadline,
the onus is on that party to be forthcoming and
transparent about the situation and the reasons for
it.”39
“A trial court has broad discretion to fashion and
impose discovery sanctions.”40 “Trial courts should
be diligent in the imposition of sanctions upon a
party who refuses to comply with discovery orders,
not just to penalize those whose conduct warrants
such sanctions, but to deter those who may be
tempted to abuse the legal system by their irresponsible
conduct.”44 “This court has broad discretion to remedy
violations of its orders, but the decision to impose
sanctions for failure to abide by a court order must
be just and reasonable.”42
37 IQ Hldgs., Inc. v. Am. Com. Lines Inc., 2012 WL 3877790, at
*2 (Del. Ch. Aug. 30, 2012).
38 Terramar Retail Ctrs., LLC v. Marion #2-Seaport Trust
U/A/D June 21, 2002, 2018 WL 6331622, at *9 (Del. Ch. Dec. 4,
2018) (quoting Ams. Mining Corp. v. Theriault, 51 A.3d 1213, 1238
(Del. 2012)).
39 In re ExamWorks Gp., Inc. S’holder Appraisal Litig., 2018
WL 1008439, at *6 (Del. Ch. Feb. 21, 2018).
40 Genger v. TRInvs., 26 A.3d 180, 190 (Del. 2011).
41 Holt v. Holt, 472 A.2d 820, 824 (Del. 1984).
42 Clymer v. DeGirolano, 2022 WL 1012993, at *4 (Del. Ch. Apr. 4,
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“Court of Chancery Rule 37(b)(2) provides an
‘arsenal’ of possible sanctions that a trial court can
impose for discovery violations.”43 Among those, if a
party “fails to obey an order to provide or permit
discovery,” the court may “renderQ a judgment by
default against the disobedient party.”44 Further, under
Court of Chancery Rule 37(d), “the Court shall require
the party failing to act... to pay the reasonable
expenses, including attorney’s fees, caused by the
failure, unless the Court finds that the failure was
substantially justified or that other circumstances
make an award of expenses unjust.”45
Here, Wollner does not dispute that he has pro
vided virtually no document discovery to PearPop, nor
does he meaningfully address whether his inter
rogatory responses were sufficient to satisfy his
discovery obligations. He effectively concedes that he
has been in continuing violation of the Discovery
Ruling.
Discovery directed to a Section 220 plaintiff
should not be broad or extensive; frequently, a Section
220 defendant will not propound discovery. When
2022) (interpreting Court of Chancery Rule 70(b)) (citing
Gallagher v. Long, 940 A.2d 945, 2007 WL 3262150 (Del. 2007)
(TABLE)).
43 Terramar, 2018 WL 6331622, at *10.
44 Ct. Ch. R. 37(b)(2)(C).
43 Id. 37(d); see also TransPerfect Glob., Inc. v. Pincus,___A.3d
___, 2022 WL 1763204, at *8 n.97 (Del. June 1, 2022) (stating
that the standard of proof for a finding of civil contempt in
Delaware is preponderance of the evidence); InTEAM Assocs.,
LLC v. Heartland Payment Sys., LLC, 2021 WL 5028364, at *11
(Del. Ch. Oct. 29, 2021) (same).
App.20a
discovery is served on a Section 220 plaintiff, however,
the plaintiff must endeavor to meet his obligations or
timely move for a protective order. Instead of doing
so in this case, Wollner repeatedly and blatantly
flouted his obligations.
Given Wollner’s egregious misconduct, it is
appropriate to grant PearPop’s motion for a default
judgment. I now turn to the question of whether
Wollner’s competing requests for relief under Rule
60(b) alter the outcome.
Rule 60(b) provides that, “[o]n motion and upon
such terms as are just, the Court may relieve a party
... from a final judgment, order, or proceeding” for
any of six enumerated reasons.46 Wollner relies on
three: “(2) newly discovered evidence;” “(3) fraud...,
misrepresentation or other misconduct of an adverse
party;” and “(6) any other reason justifying relief
from the operation of the judgment.”4?
“Rule 60(b) advances ‘two important values: the
integrity of the judicial process and the finality of
judgments.”’48 “The rule exists to serve the first; its
administration must acknowledge the second.”49
Granting relief under Rule 60(b) requires the movant
to demonstrate that another party has engaged in
“the most egregious conduct involving a corruption of
46 Ct. Ch. R. 60(b).
4? Id.
48 Okla. Firefighters Pension & Ret. Sys. v. Corbat, 2018 WL
1254958, at *2 (Del. Ch. Mar. 12, 2018) (quoting Credit Lyonnais
Bank Nederland, N.V. v. Pathe Commc’ns Corp., 1996 WL 757274,
at *1 (Del. Ch. Dec. 20, 1996)).
49 Credit Lyonnais, 1996 WL 757274, at *1.
App.21a
the judicial process itself ”50 “Sinister suspicions and
‘dark imaginings’ are not enough.”51
“Although there is no set time limit in which a
party must file a Rule 60(b) motion, the movant must
exercise diligence and act without unreasonable
delay.”52 This court has found that, “in the context of
a summary proceeding such as an action under
Section 220 . . . the delay in bringing a motion under
Rule 60(b) should be measured in weeks rather than
months.”53
I issued the Discovery Ruling on July 12, 2021.
Wollner waited until after PearPop moved for a
default judgment to move to vacate the court’s order—
more than three months. I am tempted to deny
Wollner’s combined motion due to its untimeliness
alone, but given that Wollner is a pro se litigant, I
will address his arguments on the merits.
Wollner advances a host of reasons why, in his
view, PearPop’s motion should be denied and his
motions granted. For the sake of analysis, I have
endeavored to organize these arguments according to
the three subparts of Court of Chancery Rule 60(b)
on which Wollner relies. Subpart (6) is a catch-all
50 ln re MCA, Inc., 11A A.2d 272, 280 (Del. Ch. 2000) (quoting
11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice and Procedure § 2870, at 418-19 (1995)).
51 Id. at 280.
52 Shipley v. New Castle Cty., 975 A.2d 764, 770 (Del. 2009)
(discussing the Superior Court counterpart to the Court of
Chancery rule).
53 High River Ltd. P’ship v. Forest Lab’ys, Inc., 2013 WL
492555, at *6 (Del. Ch. Feb. 5, 2013) (Master’s Report).
App.22a
provision, so I will address the plaintiffs arguments
that do not fit into the first two subparts last.
Rule 60(b)(2) permits the court to relieve a party
from an order based on newly discovered evidence.54
To obtain relief under this rule, the movant must
show that
(1) the newly discovered evidence has come
to his knowledge since the judgment; (2)
that it could not, in the exercise of reasonable
diligence, have been discovered for use before
the judgment; (3) that it is so material and
relevant that it will probably change the
result...; (4) that it is not merely cumulative
or impeaching in character; and (5) that it is
reasonably possible that the evidence will
be produced at the trial.55
In support of relief under Rule 60(b)(2), the
plaintiff argues that, in a phone conversation on
August 31, 2021, he learned from Michael Shvartsman,
a PearPop principal, that PearPop had hired its
counsel, DLA Piper, against Shvartsman’s wishes.56
Wollner maintains that Shvartsman instructed Cole
Mason, an initial member of PearPop, and Spencer
Markel, PearPop’s counsel and a former DLA Piper
attorney, not to hire DLA Piper because they were
too expensive.57 According to Wollner, Mason and
54 ct. Ch. R. 60(b)(2).
55 Corbat, 2018 WL 1254958, at *2 (brackets omitted) (quoting
Levine v. Smith, 591 A.2d 194, 202 (Del. 1991)).
56 P1.’S Mot. tH 39-41; Dkt. 90 (“Reply in Supp. of Pl.’s Mot.”)
at 13-14.
57 Pl.’s Mot. HI 9, 39.
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Markel disobeyed Shvartsman and hired DLA Piper
for $50,000, which DLA Piper agreed to as a favor to
Market.58 Wollner believes that the $50,000 figure is
significant because that is allegedly the amount that
PearPop, through DLA Piper, initially offered him to
settle this case.59
Ignoring the hearsay nature of this evidence,
and assuming its veracity solely for the sake of
analysis, this proffered new evidence does not satisfy
the requirements of Rule 60(b)(2). For new evidence
to warrant relief under the third element of the Rule
60(b)(2) test, the new evidence must change the
result of the court order. The new evidence here
would not alter the Discovery Ruling, which I entered
based on Wollner’s failure to adhere to his discovery
requirements. At best, this evidence could be used to
impeach the character of some PearPop affiliates.
But that too would be insufficient to warrant relief
under Rule 60(b)(2), because the fourth element of
the test prohibits relief based on newly discovered
evidence that is merely impeaching in character.
I turn now to Wollner’s argument under Rule
60(b)(3), which permits the court to relieve a party
from an order on the basis of fraud, misrepresentation,
or other misconduct.60 Such relief is appropriate “where
a party has engaged in fraud or misrepresentation
that prevents the moving party from fairly and
adequately presenting his or her case.”61 To succeed
58 Id. 1 39.
59 Id.
60 Ct. Ch. R. 60(b)(3).
61 MCA, Inc. v. Matsushita Elec. Indus. Co. Ltd., 785 A.2d 625,
App.24a
on a claim under Rule 60(b)(3), “the movant must
ordinarily do so by proof of clear and convincing
evidence and within a reasonable period of time after”
the relevant order or judgment was entered.62 ln
support of his request relief under Rule 60(b)(3),
Wollner makes a series of somewhat confusing points.
Wollner first contends that PearPop “falsely
accuse [d]” Wollner’s first attorney of refusing to engage
meaningfully in discovery discussions.63 But the basis
of this contention is routine discovery communications
between counsel and nothing more.
Wollner next contends that PearPop falsely
accused him of sending “threatening and harmful
messages.”64 Namely, PearPop accused Wollner of
sending an animated image of a gun to PearPop’s
CEO after Wollner sent the settlement offer. Wollner
argues that these allegedly false allegations regarding
the threatening images and other statements by
PearPop caused his first attorney to withdraw 65 Giving
Wollner the benefit of a logical inference, perhaps his
point is that these accusations disadvantaged him in
presenting his case in connection with the Discovery
Ruling because his first attorney withdrew.
Regardless of the truth or falsity of PearPop’s
accusation, the conduct does not warrant relief under
639 (Del. 2001).
62 In re U.S. Robotics Corp. S’holders Litig., 1999 WL 160154,
at *12 (Del. Ch. Mar. 15, 1999) (cleaned up).
63 Pl.’s Mot. HU 23, 27, 42.
64 Id. HU 25-26; Reply in Supp. of Pl.’s Mot. at 2-4.
65 Pi’s Mot H 44; Reply in Supp of PI‘s Mot at 5-6.
App.25a
Rule 60(b)(3). PearPop’s accusation, while serious, did
not form the basis of the Discovery Ruling nor indeed
any order this court. Wollner has not demonstrated
that anyone relied on PearPop’s accusation to their
own or another’s detriment, nor that PearPop knew
or believed the accusation to be false when made.
These familiar elements of fraud and misrepresent
ation are entirely lacking here. Moreover, Wollner’s
first counsel moved to withdraw because Wollner
“contacted counsel for [PearPop] to advise them that
Withdrawing Counsel was not currently representing
him,” not for the allegedly false statements about
Wollner.66 And at the time I entered the Discovery
Ruling, Wollner was represented by new counsel. So,
it cannot be said that PearPop’s conduct prevented
Wollner from fairly and adequately presenting his
case.
Last, Wollner contends that he feels threatened
by PearPop, alleging that he has observed people
who he believes are associated with PearPop outside
of his house.67 He expressed concern that PearPop
will use discovery he provides to fabricate false
documents or alter genuine ones, which he alleges
PearPop has already done.68 Although these allegations
could certainly rise to the level of conduct that would
warrant relief under Rule 60(b)(3), Wollner has
presented no evidence to substantiate those allegations.
Therefore, relief is not warranted under Rule
60(b)(3).
66 Dkt. 25, First Mot. to Withdraw 1 1.
67 Dkt. 112, Mar, 25, 2022 Tr. at 49:18-24.
68 Pl.’s Mot. HI 10, 43-44.
App.26a
I now address Wollner’s remaining arguments
under Rule 60(b)(6), which permits the court to relieve
a party from an order on the basis of any otherwise
unenumerated reason that would serve the interests
of justice.69 Wollner’s four remaining arguments are
that: PearPop is not entitled to depose him because it
asked Wollner’s first attorney if he had sent the
plaintiff PearPop’s settlement offer;70 Wollner did
not understand his obligations or rights during the
periods when he was not represented by counsel;?1
PearPop’s discovery requests were overbroad;?2 and
that the edited audio recordings he provided in
discovery were not recorded illegally.?3
Addressing these four points in reverse order, I
can dispose of the last two quickly. I cannot—despite
generous efforts—find any theoretical role in this
analysis for the “lawful” designation of Wollner’s
recording of the audio tapes, and I already rejected
the overbreadth argument when entering the Discovery
Ruling. Wollner’s second point is equally unavailing,
given that I took pains to instruct Wollner of his
obligations during the July 12, 2021 hearing and gave
him more opportunities to comply than he deserved.
As for the first (and final) point, I again confess that
I do not get it. It was fair for PearPop to seek
clarification from Wollner’s counsel regarding that
attorney’s actions on Wollner’s behalf given that
69 Ct. Ch. R. 60(b)(6).
70 Pl.’s Mot. ft 14-16, 42; Reply in Supp. of Pl.’s Mot. at 4-5.
7! Pl.’s Mot. f 38(a); Reply in Supp. of Pl.’s Mot. at 9-10, 14.
?2 Pl.’s Mot. ff 38(b), 43.
73 Reply in Supp. of Pl.’s Mot. at 6-8.
App.27a
Wollner had suspended his counsel for a period. What
bearing this has on the pending motion is a mystery
in any event.
In sum, Wollner has not met his burden to
demonstrate that he is entitled to relief from the
court’s order under Rule 60(b)(6).
Wollner also has not demonstrated the circum
stances necessary to escape fee shifting under Rule
37(d). As discussed above, Rule 37(d) provides for the
payment of attorneys’ fees for the failure to adhere to
discovery obligations “unless the Court finds that the
failure was substantially justified or that other circum
stances make an award of expenses unjust.”74 Al
though policy considerations make relief under Rule
60(b) more difficult to obtain, 75 this standard under
Rule 37(d) and the interests-of-justice standard under
Rule 60(b) are conceptually similar, in that they ask
the court to look at the broader context when granting
relief. Here, the broader context is not flattering for
Wollner, who blatantly failed to adhere to his minimal
discovery obligations despite being given every oppor
tunity to do so.
Therefore, PearPop’s motion for default judgment
is granted. Wollner’s motions to vacate the court’s
order to compel and for a protective order are denied.
74 Ct. Ch. R. 37(d).
75 See Wimbledon Fund LP v. SP Special Situations LP, 2011
WL 378827, at *6 (Del. Ch. Feb. 4, 2011) (“Relief under Rule
60(b)(6) is an extraordinary remedy,” and the standard “is more
exacting than any other ground for relief provided for in the Rule.
That is, in order for a party to succeed under Rule 60(b)(6), the
party must make a showing of extraordinary situation or
circumstances.” (cleaned up)).
App.28a
Wollner is responsible for PearPop’s reasonable
attorneys’ fees in this litigation from the date of the
Discovery Ruling forward.
Between September 2021 and the March 25,
2022 hearing, Wollner filed several additional motions
that have not been fully briefed: a motion for leave of
court to assess and (or) implement his rights including
amending and (or) supplementing his complaint,
seeking civil discovery sanctions against PearPop,
and litigation fees and expenses;78 a motion for
clarification regarding the denial of PearPop’s motion
for a protective order on July 12th, 2021;77 a motion
to compel PearPop to advance litigation expenses in
accordance with PearPop’s bylaws;78 a motion for a
status quo ante litem, status quo suspensions, and
extension of the plaintiffs rights;79 and a motion for
a summary judgment.80
Since the March 25, 2022 hearing, Wollner has
filed a motion for confidential treatment;8! an amended
motion to compel PearPop to advance litigation
expenses;82 a motion for discovery sanctions against
PearPop;83 a motion for an expedited briefing schedule
76 Dkt. 91.
77 Dkt. 92.
78 Dkt. 93.
79 Dkt. 97.
80 Dkt. 98.
81 Dkt. 108.
82 Dkt. 109.
83 Dkt. 110.
App.29a
and hearing date regarding the plaintiffs motion for
discovery sanctions against PearPop;84 a motion for
Rule 11(c) sanctions against PearPop;85 a motion for
default judgment;88 and a motion for an ex parte
communication with the court and temporary
restraining order.87
I did not require that PearPop respond to these
motions, which would have had the effect of increasing
the award of attorneys’ fees entered against Wollner.88
Given that I have granted PearPop’s motion for a
default judgment, there is no reason to address these
dozen additional pending motions on their merits.
They are denied. I ask that PearPop’s counsel prepare
a final order memorializing this decision for my review.
Sincerely,
Is/ Kathaleen St. Jude McCormick
Chancellor
cc: All counsel of record (by File & ServeXpress)
84 Dkt. Ill; see also Dkt. 114, Ex. 1.
85 Dkt. 115.
86 Dkt. 117.
87 Dkt. 118.
88 On March 18, 2022, PearPop filed a motion for leave to file a
motion to strike one of the plaintiff s letters to the court or, in
the alternative, for confidential treatment of the briefing on the
motion to strike. Dkt. 104. PearPop should inform the court if
further action on that motion is necessary.
App.30a
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
U.S. Const, amend. IV
In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an
impartial jury of the state and district wherein the
crime shall have been committed, which district
shall have been previously ascertained by law, and
to be informed of the nature and cause of the
accusation; to be confronted with the witnesses
against him; to have compulsory process for
obtaining witnesses in his favor, and to have the
assistance of counsel for his defense.
U.S. Const, amend. XIV, § 1
United States Constitution Amendment 14 Section
1. All persons born or naturalized in the United
States, and subject to the jurisdiction thereof,
are citizens of the United States and of the State
wherein they reside. No State shall make or
enforce any law which shall abridge the privileges
or immunities of citizens of the United States;
nor shall any State deprive any person of life,
liberty, or property, without due process of law;
nor deny to any person within its jurisdiction
the equal protection of the laws.
The Delaware Constitution of 1897
Article I. Bill of Rights
§ 7. Procedural rights in criminal prosecutions;
jury trial; self-incrimination; deprivation of life,
liberty or property.
App.31a
Section 7. In all criminal prosecutions, the
accused hath a right to be heard by himself or
herself and his or her counsel, to be plainly and
fully informed of the nature and cause of the
accusation against him or her, to meet the
witnesses in their examination face to face, to
have compulsory process in due time, on
application by himself or herself, his or her friends
or counsel, for obtaining witnesses in his or her
favor, and a speedy and public trial by an
impartial jury; he or she shall not be compelled
to give evidence against himself or herself, nor
shall he or she be deprived of life, liberty or
property, unless by the judgment of his or her
peers or by the law of the land.
Title 8 Corporations
Chapter 1. Delaware General Corporation Law
Subchapter VII. Meetings, Elections, Voting and
Notice
§ 220. Inspection of books and records.
(a) As used in this section:
(1) “Stockholder” means a holder of record of
stock in a stock corporation, or a person who
is the beneficial owner of shares of such stock
held either in a voting trust or by a nominee
on behalf of such person.
(2) “Subsidiary” means any entity directly or
indirectly owned, in whole or in part, by the
corporation of which the stockholder is a
stockholder and over the affairs of which
the corporation directly or indirectly exercises
control, and includes, without limitation,
App.32a
corporations, partnerships, limited partner
ships, limited liability partnerships, limited
liability companies, statutory trusts and/or
joint ventures.
(3) “Under oath” includes statements the
declarant affirms to be true under penalty
of perjury under the laws of the United
States or any state.
(b) Any stockholder, in person or by attorney or other
agent, shall, upon written demand under oath
stating the purpose thereof, have the right during
the usual hours for business to inspect for any
proper purpose, and to make copies and extracts
from:
(1) The corporation’s stock ledger, a list of its
stockholders, and its other books and records;
and
(2) A subsidiary’s books and records, to the extent
that:
a.
The corporation has actual possession
and control of such records of such
subsidiary; or
b.
The corporation could obtain such records
through the exercise of control over
such subsidiary, provided that as of the
date of the making of the demand:
1.
The stockholder inspection of such
books and records of the subsidiary
would not constitute a breach of an
agreement between the corporation
or the subsidiary and a person or
App.33a
persons not affiliated with the
corporation; and
2.
The subsidiary would not have the
right under the law applicable to it
to deny the corporation access to
such books and records upon
demand by the corporation.
In every instance where the stockholder
is other than a record holder of stock in
a stock corporation, or a member of a
nonstock corporation, the demand under
oath shall state the person’s status as a
stockholder, be accompanied by document
ary evidence of beneficial ownership of
the stock, and state that such document
ary evidence is a true and correct copy
of what it purports to be. A proper
purpose shall mean a purpose reason
ably related to such person’s interest as
a stockholder. In every instance where
an attorney or other agent shall be the
person who seeks the right to inspection,
the demand under oath shall be
accompanied by a power of attorney or
such other writing which authorizes
the attorney or other agent to so act on
behalf of the stockholder. The demand
under oath shall be directed to the
corporation at its registered office in this
State or at its principal place of business.
(c) If the corporation, or an officer or agent thereof,
refuses to permit an inspection sought by a
stockholder or attorney or other agent acting for
the stockholder pursuant to subsection (b) of this
App.34a
section or does not reply to the demand within 5
business days after the demand has been made,
the stockholder may apply to the Court of
Chancery for an order to compel such inspection.
The Court of Chancery is hereby vested with
exclusive jurisdiction to determine whether or
not the person seeking inspection is entitled to
the inspection sought. The Court may summarily
order the corporation to permit the stockholder
to inspect the corporation’s stock ledger, an
existing list of stockholders, and its other books
and records, and to make copies or extracts
therefrom; or the Court may order the corporation
to furnish to the stockholder a list of its stock
holders as of a specific date on condition that the
stockholder first pay to the corporation the
reasonable cost of obtaining and furnishing such
list and on such other conditions as the Court
deems appropriate. Where the stockholder seeks
to inspect the corporation’s books and records,
other than its stock ledger or list of stockholders,
such stockholder shall first establish that:
(1) Such stockholder is a stockholder;
(2) Such stockholder has complied with this
section respecting the form and manner of
making demand for inspection of such
documents; and
(3) The inspection such stockholder seeks is for
a proper purpose.
Where the stockholder seeks to inspect the
corporation’s stock ledger or list of stock
holders and establishes that such stockholder
is a stockholder and has complied with this
App.35a
section respecting the form and manner of
making demand for inspection of such
documents, the burden of proof shall be
upon the corporation to establish that the
inspection such stockholder seeks is for an
improper purpose. The Court may, in its
discretion, prescribe any limitations or
conditions with reference to the inspection,
or award such other or further relief as the
Court may deem just and proper. The Court
may order books, documents and records,
pertinent extracts therefrom, or duly
authenticated copies thereof, to be brought
within this State and kept in this State upon
such terms and conditions as the order may
prescribe.
(d) Any director shall have the right to examine the
corporation’s stock ledger, a list of its stockholders
and its other books and records for a purpose
reasonably related to the director’s position as a
director. The Court of Chancery is hereby vested
with the exclusive jurisdiction to determine
whether a director is entitled to the inspection
sought. The Court may summarily order the
corporation to permit the director to inspect any
and all books and records, the stock ledger and
the list of stockholders and to make copies or
extracts therefrom. The burden of proof shall be
upon the corporation to establish that the
inspection such director seeks is for an improper
purpose. The Court may, in its discretion, prescribe
any limitations or conditions with reference to
the inspection, or award such other and further
relief as the Court may deem just and proper.
App.36a
Del. Ct. Chancery
Rule 26. General provisions governing discovery.
(a) Discovery methods. Parties may obtain discovery
by 1 or more of the following methods: Depositions
upon oral examination or written questions;
written interrogatories; production of documents,
electronically stored information, or tangible
things or permission to enter upon land or other
property, for inspection and other purposes;
physical and mental examinations; and requests
for admission. Unless the Court orders otherwise
under paragraph (c) of this rule, the frequency of
use of these methods is not limited.
(b) Discovery scope and limits. Unless otherwise
limited by order of the Court in accordance with
these Rules, the scope of discovery is as follows:
(1) In general. Parties may obtain discovery
regarding any non-privileged matter that is
relevant to any party’s claim or defense and
proportional to the needs of the case,
including the existence, description, nature,
custody, condition and location of any
documents, electronically stored information,
or tangible things and the identity and
location of persons having knowledge of any
discoverable matter. It is not ground for
objection that the information sought will
be inadmissible at the trial.
The frequency or extent of use of the
discovery methods set forth in paragraph
(a) shall be limited by the Court if it
determines that: (i) the discovery sought is
unreasonably cumulative or duplicative, or
App.37a
is obtainable from some other source that is
more convenient, less burdensome, or less
expensive; (ii) the party seeking discovery
has had ample opportunity by discovery in
the action to obtain the information sought;
or (iii) the discovery sought is not proportional
to the needs of the case, considering the
importance of the issues at stake in the
action, the amount in controversy, the parties’
relative access to relevant information, the
parties’ resources, the importance of the
discovery in resolving the issues, and whether
the burden or expense of the proposed
discovery outweighs its likely benefit. The
Court may act upon its own initiative after
reasonable notice or pursuant to a motion
under paragraph (c).
(c) Protective orders. Upon motion by a party or by
the person from whom discovery is sought, and
for good cause shown, the Court or alternatively,
on matters relating to a deposition taken outside
the State of Delaware, a court in the state where
the deposition is to be taken may make any
order which justice requires to protect a party or
person from annoyance, embarrassment,
oppression, or undue burden or expense, including
1 or more of the following: (1) That the discovery
not be had; (2) that the discovery may be had
only on specified terms and conditions, including
a designation of the time or place or the allocation
of expenses; (3) that the discovery may be had
only by a method of discovery other than that
selected by the party seeking discovery; (4) that
certain matters not be inquired into, or that the
App.38a
scope of the discovery be limited to certain
matters; (5) that discovery be conducted with no
one present except persons designated by the
Court; (6) that a deposition after being sealed be
opened only by order of the Court; (7) that a trade
secret or other confidential research, development,
or commercial information not be disclosed or be
disclosed only in a designated way; (8) that the
parties simultaneously file specified documents
or information enclosed in sealed envelopes to be
opened as directed by the Court. A party has
standing to move for a protective order with
respect to discovery directed at a non-party on the
basis of annoyance, embarrassment, oppression,
or undue burden or expense that the moving
party will bear. A non-party from another state
from whom discovery is sought always may
move for a protective order from the court in the
state where discovery is sought or, alternatively,
from this Court provided the non-party agrees to
be bound by the decision of this Court as to the
discovery in question. If the motion for a protective
order is denied in whole or in part, the Court
may, on such terms and conditions as are just,
order that any party or person provide or permit
discovery. The provisions of Rule 37(a)(4) apply
to the award of expenses incurred in relation to
the motion
Rule 55. Default judgments.
(a) Omitted.
(b) Judgment. When a party against whom a
judgment for affirmative relief is sought, has
failed to appear, plead or otherwise defend as
App.39a
provided by these Rules, and that fact is made to
appear, judgment by default may be entered as
follows: The party entitled to a judgment by
default shall apply to the Court therefor; but no
judgment by default shall be entered against an
infant or incompetent person unless represented
in the action by a guardian, trustee or other
representative. If the party against whom
judgment by default is sought has appeared in
the action, the party (or, if appearing by
representative, the party’s representative) shall
be served with written notice of the application
for judgment at least 3 days prior to the hearing
on such application. If such party has not appeared
written notice shall be served if the Court so
directs. If, in order to enable the Court to enter
judgment or to carry it into effect, it is necessary
to take an account or to determine the amount of
damages or to establish the truth of any averment
by evidence or to make an investigation of any
other matter, the Court may conduct such
hearings or order such references as it deems
necessary and proper.
Del. C. Ch. Rule 56. Summary Judgment.
(a) For claimant. A party seeking to recover upon a
claim, counter claim, cross-claim or declaratory
judgment may, at any time after the expiration
of 20 days from the commencement of the action
or after service of a motion for summary judgment
by the adverse party move with or without sup
porting affidavits for a summary judgment in
the party's favor upon all or any part thereof.
[...]
App.40a
(c) Motion and proceedings thereon. — The motion
shall be served at least 10 days before the time
fixed for the hearing. The adverse party prior to
the day of hearing may serve opposing affidavits.
The judgment sought shall be rendered forthwith
if the pleadings, depositions, answers to interroga
tories and admissions file, together with the
affidavits, if any, show that there is no genuine
issue as to any material fact and that the
moving party is entitled to a judgment as a
matter of law. A summary judgment, interlocutory
in character, may be rendered on the issues of
liability alone although there is a genuine issue
as to the amount of damages, or some other
matter.
Rule 60. Relief from judgment or order.
(a) Clerical mistakes. Clerical mistakes in judgments,
order or other parts of the record and errors
therein arising from oversight or omission may
be corrected by the Court at any time of its own
initiative or on the motion of any party and after
such notice, if any, as the Court orders.
(b) Mistake; inadvertence; excusable neglect; newly
discovered evidence; fraud, etc. On motion and
upon such terms as are just, the Court may
relieve a party or a party’s legal representative
from a final judgment, order, or proceeding for
the following reasons: (1) Mistake, inadvertence,
surprise, or excusable neglect; (2) newly discovered
evidence; (3) fraud (whether heretofore denom
inated intrinsic or extrinsic), misrepresentation
or other misconduct of an adverse party; (4) the
judgment is void; (5) the judgment has been
App.41a
satisfied, released, or discharged, or a prior
judgment upon which it is based has been
reversed or otherwise vacated, or it is no longer
equitable that the judgment should have
prospective application; or (6) any other reason
justifying relief from the operation of the
judgment. A motion under this subdivision does
not affect the finality of a judgment or suspend
its operation. This Rule does not limit the power
of a Court to entertain an independent action to
relieve a party from a judgment, order or
proceeding, or to grant any relief provided by
statute, or to set aside a judgment for fraud upon
the Court. The procedure for obtaining relief
from judgments shall be by motion as prescribed
in these Rules or by an independent action.
Delaware Court Chancery
Rule 7. Pleadings allowed; form of motions.
(b) Motions and other papers, (l) An application to
the Court for an order shall be by motion which,
unless made during a hearing or trial, shall be
in writing, shall state with particularity the
grounds therefor, and shall set forth clearly in
the motion the relief sought. The party making
the application shall not file a separate notice of
motion. The party making the application or any
other interested party may submit a proposed
form of order.
(4) With respect to all written motions, the
parties may enter into a stipulated brief
schedule. If the parties are unable to agree
to a brief schedule, any party may apply for
an order fixing such schedule. After all
App.42a
briefs have been filed, any party may apply
for an order fixing a time for argument.
Unless the Court directs otherwise, argument
on a written motion shall be set only upon
the application of a party. Briefing and/or
argument may be waived by the parties
subject to the approval of the Court.
Rule 65. Injunctions
(b) temporary restraining order; notice; hearing;
duration. A temporary restraining order may be
granted without written or oral notice to the
adverse party or that party’s attorney only if (l)
it clearly appears from specific facts shown by
affidavit or by the verified complaint that
immediate and irreparable injury, loss or damage
will result to the applicant before the adverse
party or that party’s attorney can be heard in
opposition, and (2) the applicant’s attorney certifies
to the Court in writing the efforts, if any, which
have been made to give the notice and the
reasons supporting the claim that notice should
not be required. Every temporary restraining order
granted without notice shall be indorsed with
the date and hour of issuance; shall be filed
forthwith in the office of the Register in
Chancery and entered of record; shall define the
injury and state why it is irreparable and why
the order was granted without notice; and shall
expire by its terms within such time after entry,
not to exceed 10 days, as the Court fixes, unless
within the time so fixed the order, for good cause
shown, is extended for a like period or unless the
party against whom the order is directed consents
that it may be extended for a longer period. The
App.43a
reasons for the extension shall be entered of
record. In case a temporary restraining order is
granted without notice, the motion for a pre
liminary injunction shall be set down for hearing
at the earliest possible time and takes precedence
of all matters except older matters of the same
character; and when the motion comes on for
hearing the party who obtained the temporary
restraining order shall proceed with the
application for a preliminary injunction and, if
that party does not do so, the Court shall dissolve
the temporary restraining order. On 2 days’
notice to the party who obtained the temporary
restraining order without notice or on such shorter
notice to that party as the Court may prescribe,
the adverse party may appear and move its
dissolution or modification and in that event the
Court shall proceed to hear and determine such
motion as expeditiously as the ends of justice
require.
Delaware Supreme Court Rules
Rule 7. Disclosure of Corporate Affiliations and
Financial Interest.
(g) Disclosure of Corporate Affiliations and Financial
Interest.—Each party shall file a Disclosure of
Corporate Affiliations and Financial Interest, as
provided for in Form P of these Rules, within
fifteen (15) days of the notice of docketing the
appeal, or concurrently by a party with the filing
of a motion or other document seeking to expedite
the proceedings, and within two (2) days of
service of such a document by all other parties.
However, when the State of Delaware or any
other governmental entity is a party, a Disclosure
App.44a
of Corporate Affiliations and Financial Interests
shall be filed only if that party has pertinent
information to report
App.45a
DENIED PROPOSED ORDER
TO COMPEL LITIGATION
EXPENSES IN ACCORDANCE WITH
THE BYLAWS OF PEARPOP
(AUGUST 29, 2022)
This document constitutes a ruling of the court
and should be treated as such.
File & Serve Transaction ID: 67981814
Current Date: Aug 29, 2022
Case Number: 257,2022
Case Name: Wollner, Ryan v. PearPop Inc.
Court Authorizer Comments:
The appellant will have the opportunity to argue
the merits of his appeal in his opening brief. The Court
warns the appellant that the Court will not waste
scarce judicial resources on meritless or frivolous
motions.
/s/ Collins J Seitz. Jr.
Chief Justice
App.46a
Denied
EFILED: Aug 29 2022 10:27 AM EDT
Filing ID 67983886
Case Number 257,2022
IN THE SUPREME COURT OF THE
STATE OF DELAWARE
RYAN WOLLNER,
Plaintiff below,
Appellant,
v.
PEARPOP INC.,
Defendant below,
Appellee.
No. 257, 2022
Court Below - Court of Chancery of the
State of Delaware C.A. No. 2021-0157-KSJM
[PROPOSED] ORDER GRANTING THE
APPELLANT’S MOTION TO COMPEL
LITIGATION EXPENSES IN ACCORDANCE
WITH THE BYLAWS OF PEARPOP
Upon The Appellant’s Motion to Compel Litigation
Expenses in Accordance with the Bylaws of Pearpop,
and any opposition thereto having been considered,
App.47a
IT IS HEREBY ORDERED, this
_____ , 2022, that:
day of
(a) The Appellee be ordered to immediately
advance (within 7 days of the Order) the
Appellant $1,500,000 for his legal expenses.
(b) A stay of the court proceeding until the
legal advance is made.
(c) A 60 day enlargement of the proceeding after
the advance is received for the Appellant
to retain counsel.
Chief Justice, Collin J. Seitz, Jr.
Note: Nothing in this Order shall waive or limit the
Appellant’s rights in the future to seek additional
advancements.
App.48a
DENIED PROPOSED ORDER TO COMPEL
DISCLOSURES AND SANCTIONS
(AUGUST 24, 2022)
This document constitutes a ruling of the court
and should be treated as such.
File & Serve Transaction ID: 67929618
Current Date: Aug 24, 2022
Case Number: 257,2022
Case Name: Wollner, Ryan v. PearPop Inc.
Court Authorizer Comments:
The appellant has not shown that the appellee
failed to make the necessary disclosures in its Dis
closure of Corporate Affiliations and Financial Interest
under Supreme Court Rule 7(g).
Is/ Chief Justice Collins J Seitz, Jr.
App.49a
Denied
EFILED: Aug 24 2022 09:02 AM EDT
Filing ID 67965316
Case Number 257,2022
IN THE SUPREME COURT OF THE
STATE OF DELAWARE
RYAN WOLLNER,
Plaintiff below,
Appellant,
v.
PEARPOP INC.,
Defendant below,
Appellee.
No. 257, 2022
Court Below — Court of Chancery of the
State of Delaware C.A. No. 2021-0157-KSJM
[PROPOSED] ORDER GRANTING THE
APPELLANT’S MOTION TO COMPEL
DISCLOSURES AND SANCTIONS
Upon The Appellant’s Motion to Compel Dis
closures and Sanctions Against Counsel of Record for
Pearpop Inc. (the “Motion”), and any opposition thereto
having been considered, IT IS
App.50a
HEREBY ORDERED, this _
2022, that:
day of August,
(1) The Motion is GRANTED;
(2) The Counsel of Record be ordered to imme
diately fully comply with Sup. Ct. Rule 7(g),
thus, filing a supplemented disclosure form
disclosing all active participants and Corpo
rate Affiliations and Financial Interests,
with a sworn affidavit signed by either Ronald
Brown or John Reed;
(3) The Court immediately issue an order to
show cause requiring the Counsel of Record
to explain why they have not or did not
comply with Del. Sup. Ct. Rule 7(g), with a
sworn affidavit signed by either Ronald
Brown or John Reed.
(4) Counsel of Record is held in Contempt of
Court and Sanctioned in accordance with
FRCP 37 and Del. Sup. Ct. Rule 33 (without
waiving the Appellant’s right to have the
Appellee or their lawyers disqualified) as
such:
a. Fines be levied against DLA Piper in the
amount of $100,000 a day from the date of
the Disclosures were due to the date until
they have fully complied with the disclosure
requirements (Given the size of Denied
EFiled: Aug 24 2022 09:02AM EDT Filing
ID 67965316 Case Number 257,2022 the
law firm and the experience of the attorneys
this amount is reasonable).
b. A public reprimand.
App.51a
c .Compensation for Appellant’s time and
and
expenses in the amount $.
any fees to collect such, paid to Mr. Wollner
within 15 days of this Order (which would
be appropriate legal costs for bringing this
motion should DLA Piper have had to make
this motion against the Appellant.)
d. Referral of Counsel of Record to the
Office of Disciplinary Counsel.
e. Preapproval to enlarge the proceedings by
up to 45 days at the Appellants sole discre
tion.
App.52a
ORAL ARGUMENT AND RULINGS OF THE
COURT ON DEFENDANT’S MOTION TO
COMPEL AND MOTION FOR A PROTECTIVE
ORDER HELD VIA ZOOM
(JULY 12, 2021)
IN THE COURT OF CHANCERY OF
THE STATE OF DELAWARE
RYAN WOLLNER,
Plaintiff,
v.
PEARPOP INC.,
Defendant.
C.A. No. 2021-0157-KSJM
Before: Hon. Kathaleen St. J. McCORMICK,
Chancellor.
Chancery Court Chambers
Leonard L. Williams Justice Center
500 North King Street
Wilmington, Delaware
Monday, July 12, 2021
1:30 p.m.
APPEARANCES:
Antranig Garibian, Esq.
Garibian Law Offices, P.C.
for Plaintiff
App.53a
Ronald N. Brown, III, Esq.
Kelly L. Freund, Esq.
DLA Piper LLP (US)
for Defendant
[July 12, 2021, Transcript, p. 3]
THE COURT: Good afternoon, everyone.
COUNSEL: Good afternoon, Your Honor.
THE COURT: I’ll start by confirming that our court
reporter can hear me. Karen?
THE COURT REPORTER: Yes, I can.
THE COURT: Thank you.
Can I have appearances for the record, please?
MR. GARIBIAN: Your Honor, good afternoon. For the
plaintiff, Antranig Garibian, Garibian Law Offices,
P.C., DE Bar ID 4962.
MR. BROWN: Good afternoon, Your Honor. Ron Brown
of DLA Piper on behalf of defendant PearPop.
With me is my colleague Kelly Freund.
[•••]
THE COURT: I’m sorry. Can you hear me now?
The upside of what I just said is that the motion
for fee shifting in connection with the protective
order motion is denied. And I think you got the
law wrong, but I’m giving you what you want
anyway. Okay.
So let’s move on to the motion to compel. Can
you hear me? All right.
This is harder to resolve, in part because, Mr.
Brown, I reviewed the discovery requests that
App.54a
you issued to Mr. Wollner, and in a perfect world
I would probably conclude that they stretched
the bounds of what should be requested in a
Section 220 action, or perhaps are a little more
aggressive than I’d like to ordinarily permit.
In this case, Mr. Wollner’s reticence to respond
timely or at all also gives me pause. And so I
have a level of discomfort with wading into the
scope issue at all, and I’ll return to that.
The documents and interrogatories need to be
produced and responded to before Mr. Wollner’s
deposition. Mr. Brown is correct that the party
propounding discovery gets to pick the order in
which it occurs, within reason. And here, the
request to have documents and interrogatory
responses before a deposition is reasonable. So
those are going to be responded to before the
deposition.
I’m not deeming privilege waived, despite the fact
that Mr. Wollner did forward communications
with counsel to persons outside of the scope of
those entitled to privileged communication, and
despite the fact that Mr. Wollner did not respond
timely with objections pending discovery. I’m
exercising some leniency there and not deeming
privilege waived.
I’m also not shifting fees for the reasons I stated
earlier. It appears to me that there was-and
perhaps I’m viewing this generously towards
Mr. Wollner-there was a breakdown in communi
cation concerning multiple discovery issues. And
now that counsel has appeared for Mr. Wollner
we’ll get back on track.
App.55a
So let’s go back to the issue of scope. I’ve now
resolved all the issues basically in favor of Mr.
Wollner. And for that reason, although I view
the scope of discovery requested as perhaps on
the outer edge of what I normally permit, I think
Mr. Wollner needs to dig deep and do his best to
respond to all the requests propounded and to do
so promptly given the delays that have occurred
in this proceeding in large part due to Mr.
Wollner’s conduct and inability to retain counsel.
[•••]
MR. BROWN: None from defendant, Your Honor.
Thank you.
MR. GARIBIAN: Yes, Your Honor, I do have a
question. Are you leaving it to counsel to confer
as to the timeline for the responses?
THE COURT: Yes. But, Mr. Garibian, it needs to
happen pretty quickly.
MR. GARIBIAN: I understand.
[•••]
App.56a
JUDICIAL ACTION FORM OF DEFENDANT’S
MOTION TO COMPEL AND MOTION FOR
A PROTECTIVE ORDER
(JULY 12, 2021)
COURT OF CHANCERY JUDICIAL ACTION FORM
Date: 7-12-21 Start Time: 1:30 p.m. End Time: 1:59 p.m.
Caption: Ryan Wollner v. PearPop Inc.
Civil Action Number: 2021-0157-KSJM
lx]
New Castle County
IE1
Chancellor McCormick
Proceeding:
IEI
Other: Defendant’s motion to compel and
motion for a protective order
Reporter:
0
Karen Siedlecki
Notes: Protective order denied. Motion to compel
granted in part, denied as to fee shifting.
See transcript.
Plaintiff(s) Attorney(s):
Antranig Garibian
Defendant(s) Attorney(s):
Ronald N. Brown, III, Kelly L. Freund
App.57a
JUDICIAL ACTION FORM OF THE COURT’S
RULING ON BELLEW LLC’S MOTION TO
WITHDRAW AS COUNSEL
(MAY 14, 2021)
COURT OF CHANCERY JUDICIAL ACTION FORM
Date: 5-14-21 Start Time: 11:00 a.m. End Time: 11:09 a.m.
Caption: Ryan Wollner v. PearPop Inc.
Civil Action Number: 2021-0157-KSJM
0
New Castle County
0
Chancellor McCormick
Proceeding:
0
Bench Ruling
0
Other: The Court’s Ruling on Bellew LLC’s
Motion to Withdraw as Counsel
Reporter:
0
Jeanne Cahill
Notes: Motion Granted: See transcript.
Plaintiff(s) Attorney(s):
Sean Bellew, Charles Slanina, Ryan Wollner
Defendant(s) Attorney(s):
Ronald N. Brown, Kelly L. Freund
Court Clerk: n/a
App.58a
TRANSCRIPT OF TELEPHONIC HEARING ON
BELLEW LLC’S MOTION FOR LEAVE TO
WITHDRAW AS COUNSEL
(APRIL 28, 2021)
IN THE COURT OF CHANCERY OF
THE STATE OF DELAWARE
RYAN WOLLNER,
Plaintiff,
v.
PEARPOP INC.,
Defendant.
C.A. No. 2021-0157-KSJM
Before: Hon. Kathaleen St. J. McCORMICK,
Chancellor.
[April 28, 2021, Transcript, p. 3]
THE COURT: Good morning, counsel. This is Kathaleen
McCormick.
Can I confirm that we have a court reporter on
the line?
THE COURT REPORTER: It’s Juli, Your Honor.
THE COURT: Thank you, Juli.
And can I get a roll call from the participants?
App.59a
MR. BELLEW: Yes, Your Honor. May it please the
Court. Sean Bellew as withdrawing counsel.
MR. BROWN: Good morning, Your Honor. For
defendant, Ron Brown of DLA Piper. With me is
my colleague Kelly Freund.
MR. WOLLNER: And good morning, Your Honor.
This is the plaintiff, Ryan Wollner.
THE COURT: Thank you.
So the purpose of this hearing today is to
consider Mr. Bellew’s motion to withdraw as
counsel. I’d like to hear the parties’ respective
positions on that motion. We’ll start with Mr.
Bellew. We’ll then ask defendant’s position, and
then we’ll turn to Mr. Wollner to make his points
known.
[...]
MR. WOLLNER: So is it possible to give me a little
more time? I mean, I am talking to different
counsels, but it’s-it’s not the easiest thing to just
find counsel. I asked Sean for-for-you know, if
he wanted to send me some people that I can
talk to about substituting for him. I’m from New
York, so it’s not exactly the easiest thing to find
Delaware counsel.
THE COURT: Yeah. I mean, just Google it, man.
There’s a lot of attorneys in this town, and you’ll
get a sense of them after you start calling
around. You can even go on the Court’s website
and see what firms litigate the issues just by
looking at the decisions that deal with these issues.
App.60a
It’s actually not that hard. I respect that you’re
new to the community and you’re not from
Delaware, but a lot of people are in that position.
MR. WOLLNER: Right.
THE COURT: So take ten days and do this. Canvass
it, figure out what you can find. Be creative in
how you approach and how you look for counsel.
I think you’ll find there are a lot of solutions
publicly available.
And then, in ten days, report back. If you cannot
find substitute counsel, I will determine whether
to simply grant the motion at that time or what
other action is appropriate.
Is that understood, Mr. Wollner?
MR. WOLLNER: Yes. It’s understood.
[...]
App.61a
AUDIO RECORDING BETWEEN PLAINTIFF
AND INITIAL MEMBER 3 TRANSCRIPT
(JUNE 8, 2020)
Redacted transcript of the audio recording
between Initial Member 3 (“IM3”)
[•••]
Plaintiff: And I also wanted-I also wanted to make it
very clear that you now know that he’s [Cole
Mason] been releasing information to Spencer
that he shouldn’t have.
IM3: Yes, I got it.
Plaintiff: I wanted—I wanted that message—yeah ok. I
figured youIM3: I asked. . . I asked him point blank, I said “did
you send our operating agreement to Spencer?”
He said “No,” but he said he did engage another
lawyer, that he is paying out of his pocket, and,
you know he wrote ah . . . his lawyer wrote a
letter [June 8th 2020 “Expulsion Letter”; see D.I.
82 Ex. A], to you which I told him not to send
you, alright?
Plaintiff: Mmhmm
IM3: And ah ... he [Cole Mason] wants to send it, you
know . . . now, and I told him not to send it, and
ah . . . .that’s it.
(Redacted)
App.62a
AUDIO RECORDING OF CALL BETWEEN
PLAINTIFF AND A PURPORTED
SPENCER MARKEL, TRANSCRIPT
(SEPTEMBER 11, 2020)
Transcript of audio recording between
Plaintiff and a purported Spencer Markel (“SM”)
(former DLA Piper Attorney)
referred to as “Consultant” in the brief
[...]
Plaintiff: Stop lying . . .
SM: Hey ... Well, you should not have said that man.
Plaintiff: It’s not very manlySM: Yo yo, you don’t want to go . . . you don’t want to
goPlaintiff: to—
SM: Yo, yo, Ryan!. You don’t want to go against me!
I’ll destroy you, honestlyPlaintiff: Won’t destroy me. You won’tSM: 1100%Plaintiff: You won’t destroy meSM: Will cream you .. .
Plaintiff: You won’t, you won’t, you won’t cream me.
SM: Bro, you just threatened to sue the Company
[Pearpop LLC]. Like youPlaintiff: I am allowed to, I have my rights in the LLC,
I’m allowed to file a case against the Company.
App.63a
SM: No, you are not. . . the Company is not even an
LLC bro, it’s not. It was rePlaintiff: That is another lawsuit in itself.
SM: Go for it, bring it on dude, I’de love to see it. Bro,
I make one call to my friend at the US Attorney
in the Southern District in New York and you’ll
go down for extortion, which is a criminal case.
So if you want to go that wayPlaintiff: How am I extorting you?
SM: Yo! Ugh yo . . .
Plaintiff: Explain to me how I am extorting you? You
guys changed the LLC to an S-corp without my
signature.
SM: Yo! I already sent... I already sent. . . No, I
already sent the stuff to my buddy, he says
there’s a fucking slam dunk case for extortion,
and if you want to go there we can.
Plaintiff: How do you have . . . ? Yeah go for it, there
is no extortion.
SM: Ok.
Plaintiff: Do you even know what extortion is?
SM: When you said you were going to block the
Company from operating unless you get paid.
Brooo, like . ..
Plaintiff: I never said . . .
SM: Yes you did, we have documentation of it, I
promise you.
Plaintiff: You do?
SM: Yeah.
App.64a
Plaintiff: So you recorded a phone call in the state of
California, which is a criminal offenseSM: That’s not what I said. We have written document
ation.
Plaintiff: You don’t... You have no written document
ation of that.
SM: Ok.
Plaintiff: Because it was never said.
SM: Bro, bro, I didn’t come on this call making threats,
and so you don’t need to do that. I’m happy to
take a step back, but you should, as well. Okay.
Plaintiff: I will play my cards how I feel like playing
my cards.
SM: Yeah, you’re welcome to do that. But I’m just
telling you, like I didn’t... if someone is not
being hostile . . . hostile to you. You don’t need to
be hostile to them man.
Plaintiff: There’s no hostility. You can’t handle being
called out on lying. That’s you. You got hostile.
SM: You can’t be handled calling out on anything,
and you deny everything, bro. This is ... we looked
into your background, and we found out this is a
major problem in other companies, too. It’s not
just one, dude.
Plaintiff: What companies?
SM: Okay. Okay. Look, look, If you think that you
haven’t had similar circumstances arise in other
business dealings with, then that’s fine to believe.
I’m just telling you . . . you’re saying I’, lying to
you. I’m not lying about anything, bro.
App.65a
Plaintiff: And let me just tell you ... Cole’s had similar
circumstances in his business. You’ve had similar
circumstances in your business. Everybody has
issues when it comes to business, nothing is
straight forward. Nothing is . .. what it seems.
I’ve never heard of a company . . . There is very
few times that I’ve heard of a company that just
runs like a smooth ship.
SM: That’s not what we’re talking about. We’re talking
about similar circumstances to the way that
you’re dealing with us, as you have with other
companies and it’s fine. Look, it is what it is. I
don’t want to have any hostility, man. You have
your 5% . . .
Plaintiff: You ... you ... you keep making these claims.
SM: What claims am I making?
Plaintiff: Now I would like to know . . . first of all if
any of those companies that you are even talking
about, spoke to [you] they are in breach of their
non-disclosure non-circumvents, that’s one. 2,
you guys are in breach of your non-disclosures
non-circumvents, so, I would like to know . . .
SM: Ahhh .. . No, I’m not, (chuckles) I’m not in breach
of anything.
Plaintiff: You have a non-disclosure non-circumvent
with my company, Loxodonta.
SM: I didn’t share any ... I didn’t share any confidential
information about your company. Ok? Bro, go
read the agreement. The counterparty is your
company, it’s not Pearpop. And secondly (chuckles)
like that has nothing ... -
App.66a
Plaintiff: That’s one agreement.
SM: Yo! Look, Ryan you are not going to do a “got-you”,
I’m trying to say . . .
Supreme Court
PRESS
1>
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.