FA ND Chev, LLC et al v. Kupper et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
FA ND CHEV, LLC and FA ND SUB, LLC,)
)
Plaintiffs, 	)
)
v. 	) 	REPORT AND RECOMMENDATIONS
)
Robert Kupper; Bismarck Motor Company; )
and BMC Marine LLC d/b/a Moritz Sport 	)
& Marine, 	)
)
Defendants. 	)
___________________________________ )
)
BAPTKO, Inc., 	)
)
Plaintiff and Counter-Defendant, 	)
)
v. 	)
)
Foundation Automotive Corp., an Alberta 	) 	Case No.: 1:20-cv-00138
Corporation; FA ND CHEV, LLC; and 	)
FA ND SUB, LLC, 	)
)
Defendants and Counterclaimants. 	)
Before the undersigned is an array of pending motions, including BAPTKO Inc. and Robert
Kupper’s (“BAPTKO”) Motion to Compel Discovery, For Sanctions, and For Expedited Decision
(Doc. No. 552), and Motion to Use Documents and Information Obtained in Post-Judgment
Discovery (Doc. No. 590), as well as FA ND CHEV, LLC, FA ND SUB, LLC, and Foundation
Automotive Corp.’s (collectively “the Foundation Parties”) Motion to Enforce Protective Order
(Doc. No. 602) and Motion for Attorney’s Fees and to Stay Pending Appeal. (Doc. No. 604). The
undersigned shall address each motion in turn, and assumes the information provided by the parties
is true for purposes of this order.
Case 1:20-cv-00138-DMT-CRH Document 642 Filed 02/11/26 Page 1 of 39

2
I. 	Motion to Compel Discovery, For Sanctions, and For Expedited Decision
On April 18, 2025, BAPTKO filed a Motion to Compel Discovery, For Sanctions, and For
Expedited Decision (Doc. No. 552). Therein, BAPTKO requested the court enter an order
compelling the Foundation Parties to (1) fully respond to its discovery requests in aid of execution
on the amended judgment with substantive responses, and without objections; (2) award BAPTKO
reasonable expenses incurred as a result of the Foundation Parties’ failure to cooperate in
discovery, and (3) for expedited decision on the matter.
BAPTKO opined that on February 7, 2025, after expiration of the 30-day automatic stay
of execution on the judgment, BAPTKO served on the Foundation Parties written discovery in aid
of execution, requesting information pertaining to tax returns, financial statements, assets, debts,
and creditors, as well as other information pertaining to the Foundation Parties’ ability to pay the
judgment. (Doc. No. 556 at 3). BAPTKO also requested documents and information pertaining to
the sale of the two Mandan Dealerships to a third party during the stay of execution. BAPTKO
specifically requested from each of the Foundation Parties the following:
INTERROGATORY NO. 7: Please identify and describe in detail the sale of the
subject Mandan dealerships, which was completed after judgment was entered in
this case, including the following:
a. 	Identify the parties to the sale;
b. 	Identify the sale price and/or other consideration for the sale;
c. 	Identify any terms or conditions of the sale that referenced or related to
the above-captioned lawsuit or the judgment entered in this lawsuit;
d. 	Identify and describe where the proceeds of the sale were deposited or
kept after the sale.
e. 	Identify and describe any subsequent transfers of the proceeds, and the
current location of the proceeds.
f. 	Identify and describe how the proceeds were used/spent since the sale.
(Id. at 3-4). BAPTKO also requested documents from each of the Foundation Parties pertaining to
the proceeds of the Mandan dealership sales.
Case 1:20-cv-00138-DMT-CRH Document 642 Filed 02/11/26 Page 2 of 39

3
REQUEST NO. 11: With respect to the sale of the subject Mandan Dealerships,
which was completed after judgment was entered in this case, please provide copies
of the following:
a. 	All contracts and related contract documents;
b. 	All closing documents;
c. 	All documents relating to the payment of the funds from the purchaser,
and any deposit or transfer of those funds since the sale.
d. 	All documents relating to the use, spending, investing or otherwise
accounting for the proceeds since the sale.
(Id. at 4). The Foundation Parties served their responses to BAPTKO’s discovery requests on
March 20, 2025, after receiving an extension of time to respond. BAPTKO alleged that in the
responses, the Foundation Parties failed to provide a single substantive answer to interrogatories
or a single document in response to the requests for production of documents, instead objecting to
every request.1 (See Doc. Nos. 540-9, 540-10, 540-11).
The parties engaged in a meet and confer in April of 2025, and after being unable to reach
a resolution, appeared before the undersigned on April 8, 2025, for a status conference to discuss
the discovery dispute. (See Doc. No. 546). Following the status conference, the undersigned
ordered that the pre-judgment Protective Order (“Protective Order” or “Amended Protective
Order”) (See Doc. No. 275) continue to apply to post-judgment discovery proceedings unless
otherwise ordered by the court, that the Foundation Parties disclose all records pertaining to the
sale of the Mandan dealerships to BAPTKO by the end of the business day on April 10, 2025, and
to engage in a second meet and confer by April 13, 2025, and if the parties were unable to reach
an agreement after the second confer, BAPTKO was permitted to file a motion to compel or other
appropriate motions. (Doc. No. 547).
1 BAPTKO further noted that the Foundation Parties indicated a willingness to produce finance statements for 2024,
and tax returns for the years 2023 and 2024, however, no finance statements or tax documents had been provided as
of the date of BAPTKO’s motion. (See Doc. No. 556 at 6).
Case 1:20-cv-00138-DMT-CRH Document 642 Filed 02/11/26 Page 3 of 39

4
The Foundation Parties produced 211 pages of documents related to the sale of the Mandan
dealerships on April 10, 2025, and later provided an unredacted version of the amounts paid by
the purchaser of the Mandan dealerships. (See generally Doc. No. 582). The produced documents
did not include information regarding how the payment for the goodwill and real property was
made, nor did it contain information indicating which Foundation Party or Parties received
proceeds from the Mandan sale, and whether the proceeds were ever transferred to a different
account, entity, or person, or where the proceeds are currently located. (Doc. No. 556 at 9).
Upon engaging in a meet and confer on April 13, 2025, counsel for the Foundation Parties
provided that the proceeds from the sale of the Mandan dealerships were no longer held by FA ND
SUB, LLC, or FA ND CHEV, LLC, and that neither FA ND SUB, LLC nor FA ND CHEV, LLC,
hold any assets at all. (Id. at 9). At the time of the meet and confer, BAPTKO also requested the
Foundation Parties provide documents and information regarding assets currently held by the
Foundation Parties, to include financial accounts, real property, and business ownership interests
by April 14, 2025, and the Foundation Parties purportedly agreed to do so. (Id.). However, the
Foundation Parties later provided FA ND CHEV, LLC’s 2023 tax return, and indicated that it was
difficult to discern what documents BAPTKO was seeking as the discovery requests were broad
and generalized in nature, and that BAPTKO had not conferred in good faith by failing to narrow
the scope of the requests. (Id. at 10-11). BAPTKO sent multiple emails to the Foundation Parties
attempting to describe the information being sought in relation to the sale of the Mandan
dealerships and to again request the voluntary production of documents and information
responsive to the discovery requests regarding the location of the sale proceeds. (Id. at 11-13).
Finally, at the time BAPTKO filed its motion, the Foundation Parties had not provided any
documents in response to an April 16, 2025, email, and refused to provide any substantive
Case 1:20-cv-00138-DMT-CRH Document 642 Filed 02/11/26 Page 4 of 39

5
responses to BAPTKO’s discovery requests other than documents pertaining to the sale of the
Mandan dealerships, which do not describe assets currently held by the Foundation Parties, and
FA ND CHEV, LLC’s 2023 tax return. (Id. at 13).
On May 2, 2025, the Foundation Parties filed a response in opposition to BAPTKO’s
motion. (Doc. No. 562). In its motion the Foundation Parties contended it has acted in good faith
throughout the post-judgment discovery process, and the requested relief is premature and
unwarranted. The Foundation Parties argued that BAPTKO’s motion should be denied as: (1) the
motion is procedurally improper as it violates the 30-day stay of execution following entry of the
Amended Judgment; (2) BAPTKO misrepresented the Foundation Parties’ discovery compliance
to the court; (3) BAPTKO did not engage in good faith conferrals; (4) BAPTKO’s discovery
requests continue to be excessively broad and disproportionate to the needs of execution of the
judgment; and (5) sanctions are unwarranted. (Id. at 1-2).
The Foundation Parties gave a timeline of events differing from those provided by
BAPTKO. The Foundation Parties asserted that BAPTKO was aware of the sale of the Mandan
deanships prior to when it sought discovery. As provided by the Foundation Parties, BAPTKO
emailed the Foundation Parties on November 6, 2024, the day after conclusion of trial and before
entry of the Original Judgment, regarding the sale of the two Mandan dealerships. (Id. at 2). On
December 4, 2024, three days before the 30-day stay of the Original Judgment lapsed, BAPTKO
sent a letter to the Foundation Parties’ counsel regarding the sale of the Mandan dealership. (Id.).
Foundation’s Chief Financial Officer Derek Slemko (“CFO Slemko”) opined that
Foundation began exploring the potential sale of the Mandan dealerships in in early 2024 as part
of a corporate strategy to refocus on dealerships in key markets, with an initiative designed to
consolidate operations where Foundation could achieve greater scale and operational efficiency.
Case 1:20-cv-00138-DMT-CRH Document 642 Filed 02/11/26 Page 5 of 39

6
(Id. at 3). North Dakota was not considered one of these “key” markets. (Id.). The Foundation
Parties engaged a third-party broker to market the Mandan dealerships for sale, approximately four
months before entry of the Order on Summary Judgment (Doc. No. 373), and approximately seven
months before entry of the Original Judgment (Doc. No. 490). The Foundation Parties received an
initial purchase offer for both the Mandan dealerships in July 2024, however, the sale ultimately
fell through. (Doc. No. 562 at 3). In September 2024, Eide Automotive (“Eide”) expressed interest
in purchasing the Mandan dealerships, with the Foundation Parties executing and finalizing a letter
of intent for Eide to purchase the dealerships on September 19, 2024. (Id. at 3-4). The Foundation
Parties and Eide closed the sale of the Mandan dealerships on December 11, 2024. (Id. at 4).
In terms of the real estate associated with the Mandan dealerships, Foundation entered into
a real estate purchase agreement in 2023, wherein Foundation agreed to sell all dealership real
estate to CARS-DB12 L.L.C. and CARS-DB5, L.P. (collectively “CARS”). (Id.). This transaction
closed before the discussion of selling the Mandan dealerships began, meaning the Foundation
Parties did not own the real estate at the time of the asset purchase transition with Eide in December
2024, and were not entitled to and did not receive those proceeds. (Id.). As to the Mandan
dealership sale proceeds, the Foundation Parties allocated the funds toward satisfaction of existing
loans, financing arrangements including floor plans, transaction costs, and feeds payable to the
third-party broker and other lenders. (Id.). Any remaining amount of liquidity was nominal, and
the decision to sell the Mandan dealerships was part of a business strategy entered months before
the Judgment was entered. (Id.).
The Foundation Parties further contended that despite being aware of the sale prior to entry
of the Original Judgment, BAPTKO waited until February 7, 2025, two months after the stay on
the Original Judgment expired, to serve written discovery in aid of execution. (Id.). After
Case 1:20-cv-00138-DMT-CRH Document 642 Filed 02/11/26 Page 6 of 39

7
disagreement as to an appropriate extension of time to respond to the post-judgment discovery
requests, the court granted the Foundation Parties a 10-day extension on March 10, 2025. (Id. at
5). The Foundation Parties served their responses and objections on March 20, 2025, objecting to
the requests as overbroad, unduly burdensome, and not reasonably calculated to aid in execution
of the judgment. (Id.). The Foundation Parties also specifically objected to BAPTKO’s request for
documents dating back to June of 2019, over five years prior to entry of the Original Judgment,
but provided that it would produce financial statements for 2024 and tax returns from 2023 and
2024 on a rolling basis. (Id.).
On April 1, 2025, the parties engaged in a meet and confer regarding the discovery
responses. (Id.). At the time of the conference, the Foundation Parties proposed providing
information from June 1, 2024, to present, but BAPTKO objected to this limitation. (Id.). A status
conference was held with the undersigned on April 8, 2025. (Id.). At the conclusion of the
conference, the undersigned ordered the Foundation Parties to disclose all records pertaining to
the sale of the Mandan dealerships by April 10, 2025, and to engage in a second meet and confer
by April 13, 2025. (Id.; see also Doc. No. 547). The Foundation Parties disclosed 211 pages of
documents pertaining to the December 2024 sale of the Mandan dealerships on April 10, 2025.
(Doc. No. 562 at 6). The parties scheduled a meet and confer for April 13, 2025, and upon
BAPTKO’s request that the redactions on the produced documents be removed, the Foundation
Parties obliged, providing unredacted copies on April 12, 2025. (Id.).
The parties engaged in the second meet and confer on April 13, 2025. (Id.).
During this call, counsel for BAPTKO indicated that even if the Foundation Parties
produced additional documents, a motion to compel was likely inevitable. This
statement reveals that BAPTKO’s present Motion was not filed to resolve a genuine
discovery dispute, but rather as a tactical move to create issues and undermine the
credibility of the Foundation Parties and their counsel.
Case 1:20-cv-00138-DMT-CRH Document 642 Filed 02/11/26 Page 7 of 39

8
(Id.). On April 14, 2025, the Foundation Parties sent BAPTKO an email summarizing the April
13, 2025, meet and confer and produced an additional 177 pages of documents. (Id.). Within the
email, the Foundation Parties advised they were having difficulty discerning what documents
BAPTKO was seeking given the broad and generalized nature of the requests, and that it appeared
BAPTKO had not conferred in good faith about the discovery dispute. As noted by the Foundation
Parties’ counsel in the April 14, 2025, email,
More importantly, we need to address a procedural issue that impacts the time of
any motion to compel. On April 7, 2025, the Court entered an amended judgment
to include attorney’s fees and costs. Under applicable rules, this amended judgment
is stayed for 30 days. The April 7 amended judgment substantively altered the
original judgment, and consequently, any execution of the judgment is stayed
during this period. While BAPTKO and Kupper are certainly permitted to issue
discovery during the stay, it cannot execute on the judgment. Therefore, a motion
to compel would be improper and premature at this stage.
(Doc. No. 562-3 at 2).
On April 16, 2025, BAPTKO emailed the Foundation Parties requesting additional
documents and information pertaining to the sale of the Mandan Dealerships by April 17, 2025, at
1:00 PM CT. (Doc. No. 562 at 7). The Foundation Parties responded on April 17, 2025, advising
that counsel was unable to respond within the declared deadline. (Id.).
Despite the prior reminder of the automatic stay of the Amended judgment, on April
18, 2025, BAPTKO filed the present Motion to Compel and for Sanctions (Doc.
No. 552), making it apparent that BAPTKO was eager to file its Motion at the
earliest opportunity, regardless of the Foundation Parties’ ongoing good faith
efforts to provide responsive information.
(Id.). The same day, the Foundation Parties produced an additional set of documents, including
information as to where the sale proceeds went, totaling over 400 pages produced in response to
BAPTKO’s discovery requests. (Id.). Upon receiving the additional documents from the
Foundation Parties on April 18, 2025, BAPTKO issued subpoenas duces tecum to BMO Bank,
Case 1:20-cv-00138-DMT-CRH Document 642 Filed 02/11/26 Page 8 of 39

9
N.A. (“BMO”) for the Mandan dealerships’ bank accounts to obtain documents relating to the sale
and subsequent transactions in December 2024. (Id. at 7-8).
This tactic reveals BAPTKO’s true objective: rather than working to execute on the
judgment through established procedures, like writs of garnishment to the bank
accounts, BAPTKO chose to subpoena BMO to gather information to set up a
separate claim for fraudulent transfer. As is clear by the communications from and
actions of counsel for BAPTKO, the present Motion is not genuinely about
obtaining information to execute on the judgment, but rather about pursuing
collateral litigation strategies.
(Id. at 8).
On May 9, 2025, BAPTKO replied to the Foundation Parties’ response. (Doc. No. 568).
BAPTKO advised the instant motion was necessary to pierce through the Foundation Parties’
evasive tactics and hold it to its legal obligation. (Id. at 1). Such a motion was necessary to obtain
documents and information in aid of execution on the judgment under the current circumstances,
whereas the Foundation Parties never posted a supersedeas bond to secure a stay of execution
pending appeal, despite assurances of its intent to do so and later making a similar representation
to the Court, its failure to provide information about the Foundation Parties’ current assets in
response to discovery requests, and divesting two of the three judgment debtors of assets within
weeks after the Judgment was entered. (Id. at 4-5).
The undersigned first addresses the Foundation Parties’ allegation that BAPTKO’s motion
was procedurally improper as it was filed in violation of the 30-day stay of execution following
entry of the Amended Judgment. An Amended Judgment was entered on April 7, 2025. (Doc. No.
545). The Foundation Parties argue that this triggered a new 30-day automatic stay of execution
pursuant to Federal Rules of Civil Procedure 62(a), which would remain in effect until May 7,
2025. (Doc. No. 562 at 9-10). BAPTKO filed its motion to compel on April 18, 2025, within the
automatic stay period. (Id. at 10; Doc. No. 552).
Case 1:20-cv-00138-DMT-CRH Document 642 Filed 02/11/26 Page 9 of 39

10
While Rule 62(a) provides an automatic stay on execution of a judgment and enforcement
proceedings for thirty (30) days after entry of the judgment, there are exceptions. Fed. R. Civ. P.
62(a). Specifically, the court itself may order otherwise, or as dictated by Rule 62(c) and (d). Id.
Here, BAPTKO was given leave to file its motion to compel. Specifically, in an April 8, 2025,
Order, the undersigned opined that the parties were to engage in a second meet and confer by April
13, 2025, and “[i]f the parties are unable to reach an agreement after the second meet and confer,
the [BAPTKO] parties may file their motion to compel and/or other appropriate motions.” (Doc.
No. 547). The parties complied with the Order, and upon an unsuccessful meet and confer,
BAPTKO filed the current motion.
Even if BAPTKO were to have filed a procedurally improper motion, the undersigned still
would not recommend denial of the motion on this basis. As requested by the Foundation Parties,
“[t]his Court should deny or, at minimum, defer ruling on BAPTKO’s Motion until after the
expiration of the automatic stay.” (Doc. No. 562 at 10). The automatic stay remained in effect until
May 7, 2025. It is now well past expiration of the stay.
BAPTKO asks the court to compel the Foundation Parties to fully respond to its discovery
requests in aid of execution on the amended judgment. Such a motion is dictated by the Federal
Rules of Civil Procedure 69. Rule 69 provides, “[i]n aid of the judgment or execution, the judgment
creditor … may obtain discovery from any person – including the judgment debtor – as provided
in these rules or by the procedure of the state where the court is located.” Fed. R. Civ. P. 69(a)(2).2
Under this statute, all discovery procedures provided in the rules are available. Fed. R. Civ. P. 69,
2 The Foundation Parties argue that while the scope of post-judgment discovery is broad, it is not unlimited. It
specifically points to Rule 26, which permits discovery of “any nonprivileged matter that is relevant to any party’s
claim or defense and 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.” Fed. R. Civ. P. 26(b)(1). However, the rule further provides that “[i]nformation within
this scope of discovery need not be admissible in evidence to be discoverable.” Id.
Case 1:20-cv-00138-DMT-CRH Document 642 Filed 02/11/26 Page 10 of 39

11
advisory committee notes to 1970 amendment. “The purpose of post-judgment discovery is to
learn information relevant to the existence or transfer of the judgment debtor’s assets.” United
States v. McLean, No. 23-CV-2096 (PJS/TNL), 2024 WL 4664448, at *2 (D. Minn. Nov. 4, 2024)
(quoting Brit. Int’l Ins. Co. v. Seguros La Republica, S.A., 200 F.R.D. 586, 589 (W.D. Tex. 2000)).
“The scope of post[-]judgment discovery is very broad to permit a judgment creditor to discover
assets upon which execution may be made.” McLean, 2024 WL 4664448, at *2 (quoting JP
Morgan Chase Bank, N.A. v. DataTreasury Corp., 936 F.3d 251, 256 (5th Cir. 2019)). Rule 69(a)
therefore “allows the judgment creditor freedom to make a broad inquiry to discover hidden or
concealed assets of the judgment debtor.” McLean, 2024 WL 4664448, at *2 (quoting SIM
Surgical, LLC v. SpineFrontier, LLC, No. 4:20-CV-01060-JAR, 2023 WL 1100380, at *2 (E.D.
Mo. Jan. 30, 2023)).
Based on the parties’ briefing, it is apparent the Foundation Parties have provided
responses. However, the Foundation Parties appear to continue to be less than forthcoming. In fact,
the undersigned previously addressed this issue on at least two prior occasions. After an April 8,
2025, status conference regarding a discovery dispute, the Foundation Parties were ordered to
disclose all records pertaining to the sale of the Mandan dealerships to BAPTKO by the end of
business day on April 10, 2025. (See Doc. No. 547). As reported by both BAPTKO and the
Foundation Parties, 211 pages of documents pertaining to the sale were disclosed on April 10,
2025. The Foundation Parties later produced an additional 177 pages of documents after the April
13, 2025, meet and confer, and an additional set of documents after April 17, 2025.
As previously noted, the undersigned required all records pertaining to the sale of the
Mandan dealerships be disclosed by April 10, 2025. Even so, counsel for BAPTKO repeatedly
Case 1:20-cv-00138-DMT-CRH Document 642 Filed 02/11/26 Page 11 of 39

12
requested additional information even after the April 10, 2025, disclosures. As opined by
BAPTKO’s counsel in an April 11, 2025, email:
Thank you for providing some limited additional information as directed by
Magistrate 	Judge 	Hochhalter. 	However, 	the 	information 	you 	provided 	was
extremely limited and we do not believe it was in compliance with Magistrate Judge
Hochhalter’s directive at the recent meet and confer conference. The information
you provided appears to be related to the sale of the Mandan Dealerships previously
owed by FA ND CHEV and FA ND SUB and there is no virtually no information
provided as to where the proceeds from the sale of the Mandan Dealerships went,
other than one wire transfer document identifying that the proceeds were deposited
in a BMO Harris bank account for some Foundation entity. None of the other
discovery requests or information we asked for was provided at all. Similarly, no
information was provided to identify where the proceeds from the Mandan
Dealerships went after the money arrived at BMO Harris or where that money is
now.
(Doc. No. 562-2 at 3). Further, BAPTKO contended in an April 24, 2025, email to the Foundation
Parties:
There is no information in the documents provided indicating where the payment
proceeds for the Mandan dealership sales went to. We do note that the BMO Harris
documents you produced indicate that what appears to be funds paid to FA ND
CHEV, LLC and FA ND SUB, LLC for the Mandan dealerships were withdrawn
from the FA ND CHEV, LLC and FA ND SUB, LLC BMO accounts soon after the
closing on the Mandan dealerships. In that regard, see entry on December 11, 2024,
reflecting a “PC TRANSFER DEBIT BAL TRANSFER” of $13,416,829.49
identified in FAC000396. Also see a similar “PC TRANSFER DEBIT PAL
TRANSFER[”] on December 11, 202[]4 in the amount of $11, 539,727.59,
identified in FAC000404.
We are requesting the Foundation parties (FA ND CHEV, LLC, FA ND SUB, LLC,
and Foundation Automotive Corp) immediately advise where there referenced
funds in the amounts of $13,416,829.49 (FAC000396) and $11,539,727.59
(FAC000404) 	were 	transferred 	to 	and 	that 	Foundation 	produce 	all 	related
documentation.
(Doc. No. 562-5 at 1).
Even more disconcerting is that the undersigned again had to discuss the disclosure of
information and documents at the October 7, 2025, omnibus hearing.
THE COURT: From today’s testimony, though, the funds from the sale went to
secured creditors, I mean, they went in a roundabout way. It may have gone to a
Case 1:20-cv-00138-DMT-CRH Document 642 Filed 02/11/26 Page 12 of 39

13
nonparty initially, but supposedly they were paid to secured creditors who had a
priority interest.
MR. BAKKE: Well, except for we don’t have any documentation to show that. And
the critical step here is between the FA ND entities and Foundation Automotive
U.S. I have not heard any testimony or seen any evidence that these FA ND entities
owed a dime to the third party they transferred it to, Foundation Automotive U.S.
That debt, if there was a debt, was owed by Foundation Automotive U.S.; so you
can’t use a third party to transfer the money to.
Now they say Foundation via FA ND entities were owed part of this money. We
have no idea. Mr. Slemko hasn’t said how much that is or whether –
THE COURT: Well, there’s going to be documentation of these different security
interest that if they haven’t been disclosed, they can be.
MR. BAKKE: Which we don’t have.
THE COURT: Right. I get that.
But, Mr. Shaffer, you’d agree that there’s – there is documentation to substantiate
the claims that these various creditors had to the proceeds from the sale of these
two dealerships?
MR. SHAFFER: Yes, Your Honor. And –
THE COURT: And – and has that been disclosed?
MR. SHAFFER: The actual credit agreements for the facilities have not been
disclosed and out – my understanding –
THE COURT: Because it seems to be that that’s part of what is required to be
disclosed.
MR. SHAFFER: I don’t disagree, Your Honor.
THE COURT: okay.
(Doc. No. 628 at 179-181). The undersigned subsequently ordered the Foundation Parties to
produce all relevant documents after the October 7, 2025, omnibus hearing.
[T]he court ORDERS that the Foundation Parties shall produce by October 17,
2025 (if they have not already) all documents, including but not limited to
promissory notes, loans, or other or other financial agreements with creditors, to
substantiate that other creditors had a right or claim to the proceeds from the sale
of FA ND CHEV, LLC’s and FA ND SUB, LLC’s dealerships in Mandan, North
Dakota.
Case 1:20-cv-00138-DMT-CRH Document 642 Filed 02/11/26 Page 13 of 39

14
(Doc. No. 629 at 2-3) (emphasis in original).
Despite these repeated orders, it appears the Foundation Parties still have not produced all
the required documents as directed and have intentionally withheld documents despite prior court
orders. “[A]fter the October 7, 2025, evidentiary hearing (“hearing”), Debtors produced 1,287
pages of documents, including previously undisclosed documents regarding Debtor’s financing
and relating to the sale of the Mandan Dealerships (which were ordered to be produced no later
than April 10, 2025).” (Doc. No. 635 at 2-3) (emphasis and internal citations omitted). Even with
these late disclosures, BAPTKO continues to allege the Foundation Parties have not disclosed what
happened to the sale proceeds for the Mandan dealerships. This resulted in BAPTKO subpoenaing
a third-party bank to learn the funds were initially transferred from FA ND CHEV, LLC and FA
ND SUB, LLC to a related non-party entity, Foundation Automotive US Corp., but the details of
where the proceeds have since gone remain unknown. (Doc. No. 635 at 3). BAPTKO is further
allegedly unaware of the location or description of any of the Foundation Parties’ current assets.
(Doc. No. 587 at 4).
The court’s attention is also struck by the Foundation Parties’ own admissions. Although
the Foundation Parties contend that BAPTKO made “fundamental misrepresentations” to the court
about its discovery efforts, pointing to the disclosure of over 400 pages of documents in response
to discovery requests, the lack of relevance of the documents to post-judgment execution
proceedings, and its efforts to provide additional responsive information within a reasonable scope,
the undersigned is not convinced the Foundation Parties have complied with discovery to the
extent it asserts it did. While the undersigned disagrees with BAPTKO that the Foundation Parties
completely failed to participate in discovery, it is worth noting concerns raised in the Foundation
Parties’ own briefing.
Case 1:20-cv-00138-DMT-CRH Document 642 Filed 02/11/26 Page 14 of 39

15
Per the Foundation Parties’ post-hearing brief, “[t]he evidence showed good faith efforts
to produce discovery to BAPTKO while balancing legitimate apprehensions about potential
misuse, including the risk of public dissemination of financial data that could imperial business
operations, manufacturer relationships, collateral financers, and, ultimately, BAPTKO and
Kupper’s own ability to collect on their judgment.” (Doc. No. 633 at 7-8) (emphasis omitted).
While the undersigned is sympathetic to the parties’ concerns about the risk of public
dissemination of financial data and the potential for misuse, the parties chose to litigate this matter
in a public forum, and despite such apprehensions, disclosure of information and documents is not
optional, nor can the parties pick and choose what to disclose based on personal apprehension.
The Foundation Parties further alleged that it has “repeatedly expressed willingness to
provide additional responsive information within a reasonable scope.” (Doc. No. 562 at 11). Yet,
testimony provided by the Foundation Parties’ counsel at the time of the October 2025, hearing, is
unsupportive of that fact. Counsel alleged that while the Foundation Parties offered to provide
information if BAPTKO would agree to limit the scope, such an offer was declined. (Doc. No. 628
at 141). However, further examination revealed that BAPTKO requested the Foundation Parties
provide all responsive information and documents for each interrogatory and request for
production, limited to whatever timeframe the Foundation Parties felt was reasonable and
allowable under the Federal Rules of Civil Procedure. (Id. at 142). The Foundation Parties did not
provide BAPTKO with a time period, nor did it provide any information for said time period, due
to its belief that “a motion to compel and a motion for sanctions was inevitable.” (Id.).
This court has ordered the Foundation Parties to disclose information and documents on
multiple occasions. It should not be in a position to have to direct complete disclosure again. While
the undersigned appreciates that the Foundation Parties have provided some relevant disclosures,
Case 1:20-cv-00138-DMT-CRH Document 642 Filed 02/11/26 Page 15 of 39

16
it still has not disclosed where the sale proceeds have gone or the location or description of current
assets, which is relevant to BAPTKO’s attempts to collect the judgment. However, the undersigned
also does not find it appropriate to require the Foundation Parties to fully respond to BAPTKO’s
discovery requests with substantive responses, and without objections. While information need not
be admissible to be discoverable, the Foundation Parties have a right to object to discovery requests
to preserve the record. This does not mean the Foundation Parties do not have to answer or get by
with boilerplate objections.
Though the Foundation Parties are of the mind that BAPTKO’s discovery requests are
overbroad and disproportionate, Rule 69 discovery broadly allows the judgment creditor an
opportunity to discover assets that could be used for execution of the judgment. Here, the
Foundation Parties take specific issue with BAPTKO’s request for financial information dating
back to 2019, which it asserts is beyond what is necessary or proportional for post-judgment
execution, and the discovery requests themselves are overly broad and burdensome.
BAPTKO has since modified its request from information dating back to 2019 to all
substantive responses and documents from July 31, 2020, the date of the lawsuit’s commencement,
to the present. (Doc. No. 568 at 6). BAPTKO further acknowledged that it requests more than just
information and documents pertaining to the sale of the Mandan dealerships.
BAPTKO has also separately requested documents and information describing
other assets they may own and transactions they may have been involved with,
including for example: the location and current balance of all bank accounts; the
location and value of all real and personal property; transfers of business interests,
personal property, and real property; and instruments evincing debt, among other
categories of documents and information.
(Id.). While acknowledging that the Foundation Parties have produced information and documents
pursuant to its discovery obligations, many of these disclosures have been substantially delayed,
or only select documents and information has been provided. Accordingly, the undersigned
Case 1:20-cv-00138-DMT-CRH Document 642 Filed 02/11/26 Page 16 of 39

17
recommends that the Foundation Parties be required to submit all substantive responses and
documents to BAPTKO’s requests from July 31, 2020, to the present. Such disclosures shall be
made within seven (7) days from the date of the final Order. The Foundation Parties may provide
objections but will still be required to substantively respond. As a reminder, information need not
be admissible to be discoverable, and one’s apprehensions about potential misuse is not an
appropriate basis to thwart disclosure under the Rules.
As to whether BAPTKO did not engage in good faith conferrals, such an argument is
meritless. Both at the time of briefing and during the post-judgment discovery phase, the
Foundation Parties took issue with what it determined was a failure of BAPTKO to confer in good
faith. An April 2025, email from the Foundation Parties’ counsel advised that its position was that
BAPTKO failed to provide any “meaningful detail or guidance” as to post-judgment discovery
and thus did not confer in good faith. (Doc. No. 562-3 at 1). Similar arguments are repeated
elsewhere in the briefing. (See Doc. No. 562 at 18-19). The Foundation Parties also alleged that
counsel for BAPTKO indicated a motion to compel was inevitable regardless of what documents
were produced. While such a statement was documented in an email from the Foundation Parties’
counsel memorializing the events of an April 13, 2025, meet and confer (see Doc. No. 562-3 at 1),
and counsel continued to argue a motion to compel was inevitable (see Doc. No. 628 at 117-19,
142-43), to the undersigned’s knowledge, there is no available recording of the meet and confer,
and counsel for BAPTKO disagreed with the rendition of what occurred as dictated in the email.
However, even if BAPTKO’s counsel made such a statement, it does not necessarily mean there
was no good faith effort made to resolve the dispute prior to the filing of the motion to compel. It
is clear from the Local Rules that after a meet and confer and hearing with the court, a motion to
compel may be filed, which is a reality in many civil suits, even when parties attempted to resolve
Case 1:20-cv-00138-DMT-CRH Document 642 Filed 02/11/26 Page 17 of 39

18
discovery disputes in good faith. Also notable is that this was a second meet and confer ordered
by the court after an initial meet and confer and hearing with the undersigned, during which the
parties were ordered to engage in a second meet and confer prior to the filing of any motion to
compel.
Second, BAPTKO requests the court award it reasonable expenses incurred as a result of
the Foundation Parties’ failure to cooperate in discovery. “As the Foundation Parties’ responses to
BAPTKO’s post-judgment discovery requests are evasive in the extreme, entirely incomplete, and
contain no answers whatsoever, they should be sanctioned pursuant to Rule 37.” (Doc. No. 556 at
22). Federal Rules of Civil Procedure 37 provides in relevant part:
(a) Motion for an Order Compelling Disclosure or Discovery.
(1) In General. On notice to other parties and all affected persons, a
party may move for an order compelling disclosure or discovery.
The motion must include a certification that the movant has in good
faith conferred or attempted to confer with the person or party failing
to make disclosure or discovery in an effort to obtain it without court
action.
…
(4) Evasive or Incomplete Disclosure, Answer, or Response. For
purposes 	of 	this 	subdivision 	(a), 	an 	evasive 	or 	incomplete
disclosure, answer, or response must be treated as a failure to
disclose, answer, or respond.
(5) Payment of Expenses; Protective Orders.
…
(C) If the Motion is Granted in Part and Denied in Part. If the
motion is granted in part and denied in part, the court may issue any
protective order authorized under Rule 26(c) and may, after giving
an opportunity to be heard, apportion the reasonable expenses for
the motion.
Fed. R. Civ. P. 37(a)(1), (4), (5)(C).
The Foundation Parties request the court deny the issuance of sanctions as they are
unwarranted under the circumstances. In support of this request, the Foundation Parties argued
there has been no violation of Rule 37 as it has timely responded to discovery requests, participated
Case 1:20-cv-00138-DMT-CRH Document 642 Filed 02/11/26 Page 18 of 39

19
in multiple meet and confers, engaged in substantive email communications addressing concerns
and providing clarifications, made ongoing production of tax returns and financial information,
and offered specific explanations for objections. Further, BAPTKO’s request was procedurally
defective as it rejected proposals to narrow the scope of discovery, refused to meaningfully engage
with the Foundation Parties’ concerns about the breadth of the discovery requests, and insisted on
immediate discovery despite the 30-day automatic stay.
The undersigned will not re-address the arguments made here. Rule 37 provides that in the
event a motion is granted in part; the court may apportion reasonable expenses. See Fed. R. Civ.
P. 37(a)(5)(C). The undersigned does not find a basis for doing so here based on the conduct of
both parties. It is likely no surprise to either party that this court is cognizant of the number of
resources and time spent on this matter and the state court actions. However, both parties have
engaged in conduct that frankly could warrant sanctions under Rule 37, but the undersigned is not
inclined to recommend such action here. In this instance, the parties shall be responsible for their
own fees and costs associated with bringing the respective motions, but the parties are cautioned
that stonewalling, vague responses, and inappropriate attacks on counsel may not be met with
grace in the future.
Finally, BAPTKO requested expedited decision on the current motion. BAPTKO’s motion
was filed on April 18, 2025. The undersigned is not in a position to now expediate the matter when
such a length of time has passed, and numerous post-judgment motions must be addressed and
ruled on. Accordingly, to the extent BAPTKO requests an expedited decision on this matter, it can
be deemed moot.
Case 1:20-cv-00138-DMT-CRH Document 642 Filed 02/11/26 Page 19 of 39

20
II. 	Motion to Use Documents and Information Obtained in Post-Judgment Discovery
On August 26, 2025, BAPTKO filed a Motion to Use Documents and Information
Obtained in Post-Judgment Discovery (Doc. No. 590). BAPTKO requested “the Court issue an
order permitting BAPTKO to use documents and information obtained in post-judgment
discovery, including those marked ‘Confidential,’ to be used in state court actions to collect on the
judgment, subject to any protective order entered by the state court.” (Id. at 1). In support of its
request, BAPTKO alleged that the Foundation Parties have avoided collecting on the judgment by
selling real estate and other assets relating to the Mandan Dealerships shortly after entry of the
initial judgment and fraudulently transferred proceeds of the sale to a Foundation company not
subject to the judgment or party to this action. (Doc. No. 591 at 2). BAPTKO has commenced two
state court actions, one in the 151st Judicial District of Texas, and one in the South Central Judicial
District of North Dakota, seeking collection on the federal judgment and relating to the fraudulent
transfers that occurred prior to and after the entry of the judgment. BAPTKO now argues that it
should be permitted to use post-judgment discovery obtained in the federal case in the state court
actions to collect on the federal judgment once the state courts enter an appropriate protective
order.
On September 9, 2025, the Foundation Parties responded to BAPTKO’s motion. (Doc. No.
601). The Foundation Parties argued “the Motion violates the express terms of this Court’s
Amended Protective Order; represents an improper attempt to circumvent federal discovery rules;
abuses Rule 69 and its post-judgment discovery process; and, further, reveals that BAPTKO failed
to follow the required procedures for using protected materials in other litigation.” (Id. at 1-2).
Furthermore, “granting the Motion would act to facilitate forum shopping and BAPTKO’s
vexatious litigation tactics.” (Id. at 2). Elsewhere in its briefing, the Foundation Parties argued that
Case 1:20-cv-00138-DMT-CRH Document 642 Filed 02/11/26 Page 20 of 39

21
BAPTKO is barred from pursuing new contract claims based on the same transaction or occurrence
under the theory of res judicata, and its attempts to use post-judgment discovery to develop new
claims is an improper attempt to circumvent the preclusive effect of the judgment entered in this
court. (Doc. No. 562 at 16-18).
On September 16, 2025, BAPTKO filed a reply to the Foundation Parties’ September 9,
2025, response. (Doc. No. 606). Therein, BAPTKO asserted that while the Foundation Parties
attempt to describe the state court actions as “additional litigation,” “separate lawsuits,” or
“parallel litigation,” the state court proceedings are actually collection actions wherein BAPTKO
is attempting to collect on debt owed under the federal judgment. Moreover, BAPTKO argued the
Foundation Parties grossly misrepresented its “strategy,” there is good cause to modify the
Amended Protective Order, the Amended Protective Order does not currently address the use
contemplated in BAPTKO’s motion, there has been no forum shopping, and there are no
alternative remedies available.
While the Foundation Parties claim to be concerned with the state court actions acting as
new contract claims based on the same transaction or occurrence as the instant matter, it contradicts
itself. It is true that the Foundation Parties adamantly believe BAPTKO is attempting to circumvent
the federal proceedings, however, according to a memorandum filed in the North Dakota state
matter, “[t]his case is a thinly veiled post-judgment collection tactic designed to circumvent the
federal appellate process, despite the fact that the judgment in the underlying matter is currently
pending before the Eighth Circuit.” (Doc. No. 592-2 at 2). It appears to the undersigned that the
Foundation Parties are “talking out of both sides of their mouth” as it has acknowledged the state
matters are post-judgment collection actions but also attempt to portray them as new contract
claims.
Case 1:20-cv-00138-DMT-CRH Document 642 Filed 02/11/26 Page 21 of 39

22
In a matter of expediency, permitting the parties to use post-judgment discovery in the state
court proceedings would serve judicial efficiency. BAPTKO initiated the state actions to collect
on the debt owed under the federal judgment; it is reasonable to extend the protection of the current
Protective Order to both the North Dakota and Texas state court actions. As questioned by the
undersigned previously, “[w]hy shouldn’t this Court expand [the protective order] because the
Court has the power to do that, order otherwise, and allow the same substance to apply in these
two state court proceedings?” (Doc. No. 628 at 162). The undersigned further noted that although
it can issue an order stating the amended protective order can apply to the state matters, it will be
up to the state court judge to impose it. (Id. at 165). It is the recommendation of the undersigned
that the Protective Order be extended for use in the state court proceedings and the list of
individuals to whom information may be disclosed, such as “other persons,” shall be expanded to
include all counterparts3 during the North Dakota and Texas state court proceedings. The
undersigned further recommends that any protective order entered by the state court mirror that of
the federal court to the extent practicable. Upon the entry of appropriate protective orders in the
North Dakota and Texas matters, the parties may use documents and information obtained in post-
judgment discovery to the extent dictated by the protective orders.
III. 	Motion to Enforce Protective Order and Motion for Attorney’s Fees and to Stay
Pending Appeal
On September 9, 2025, the Foundation Parties filed a Motion to Enforce Protective Order
(Doc. No. 602) and Motion for Attorney’s Fees and to Stay Pending Appeal. (Doc. No. 604). The
Foundation Parties moved for the court to enter an order: (1) enforcing the Amended Protective
Order and enjoining BAPTKO from further violations; (2) staying the state court proceedings in
3 The state court counterparts shall be dictated by the list on pages 5-6 at paragraph 18 of the Amended Protective
Order. (See Doc. No. 275 at 5-6).
Case 1:20-cv-00138-DMT-CRH Document 642 Filed 02/11/26 Page 22 of 39

23
North Dakota and Texas pending resolution of the pending appeal in this matter; (3) staying post-
judgment enforcement pending appeal; and (4) require BAPTKO and its counsel to pay attorney’s
fees and expenses incurred in bringing the instant motion. (Doc. No. 602 at 1).
Within its memorandum, the Foundation Parties argued BAPTKO’s conduct demonstrated
“a fundamental misunderstanding of – or deliberate disregard for – the limits imposed by court-
ordered discovery protections. The current violations are not isolated incidents but represent a
continuation of the same misconduct that required judicial intervention three years ago.” (Doc. No.
603 at 1-2). The Foundation Parties pointed to a 2022 Motion to Enforce the Stipulated Protective
Order and for Sanctions (Doc. Nos. 80-81) filed “based on [Robert] Kupper’s misuse of
confidential discovery materials.” (Id. at 2), and the court’s enforcement of the protective order
based on the sharing of information subject to the protective order with BAPTKO prior to the
consolidation of the cases. (See Doc. No. 170). The Foundation Parties now contend BAPTKO is
engaging in the same misconduct.
The Amended Protective Order entered on August 31, 2023, provides that “[i]nformation
that is designated as ‘Confidential’ shall not be used for any purpose except for the prosecution or
defense of these Consolidated Cases unless authorized by further order of this Court.” (Doc. No.
275 at 5). As previously noted, the undersigned entered an order in April of 2025, directing that
the Protective Order continue to apply to post-judgment proceedings unless otherwise ordered by
the court. (Doc. No. 547).
Despite the directive that the Protective Order continues to apply to post-judgment
discovery, the Foundation Parties contend that BAPTKO has directly violated the Protective Order
and abused the post-judgment discovery process by initiating state court actions in North Dakota
and Texas. (Doc. No. 603 at 3-4). The North Dakota action “seeks to unwind transfers from the
Case 1:20-cv-00138-DMT-CRH Document 642 Filed 02/11/26 Page 23 of 39

24
Mandan dealership sale using fraudulent transfer theories under the North Dakota Uniform
Voidable Transactions Act.” (Id. at 4). The Texas action similarly seeks to unwind transfers from
the Mandan dealership sale and alleges fraudulent transfer theories under Texas law. (Id.).
The Foundation Parties further pointed to BAPTKO’s filing of a motion requesting
permission to use documents and information obtained in post-judgment discovery, including
those designated as “Confidential,” in the state court actions as a direct contravention of the
Protective Order. (Id.). Finally, the Foundation Parties argued that the filing of parallel state court
proceedings revealed that BAPTKO’s true aim was to build and prosecute fraudulent transfer
claims as opposed to aiding in the execution of the federal judgment. (Id. at 4-5).
BAPTKO filed a response in opposition to the Foundation Parties’ motions on September
23, 2025. (Doc. No. 608). Therein, BAPTKO averred that the Foundation Parties continue to lock
it in a box where the only option to collect on the judgment is to conduct post-judgment discovery,
and to only execute on the judgment in this case against parties whose assets were depleted almost
immediately after entry of the judgment. (Id. at 4). BAPTKO further argued that in bringing this
motion, the Foundation Parties failed to comply with local rules, failed to establish BAPTKO
violated the Protective Order, that commencement of the state court actions was appropriate, and
post-judgment enforcement should only be stayed pending appeal if the Foundation Parties post a
full supersedes bond.
On September 30, 2025, the Foundation Parties filed a reply in support of their motion.
(Doc. No. 617). The Foundation Parties contended that BAPTKO’s response confirms that it views
the Protective Order as “a mere inconvenience to be circumvented rather than a binding judicial
command.” (Id. at 1). Moreover, BAPTKO has engaged in “hair-splitting” by claiming not to have
violated the Protective Order as they have not filed confidential documents but have filed two
Case 1:20-cv-00138-DMT-CRH Document 642 Filed 02/11/26 Page 24 of 39

25
separate state court actions premised on information obtained through federal post-judgment
discovery. (Id.). The Foundation Parties further argued that it is in compliance with Local Rule
37.1, BAPTKO has in fact violated the Protective Order, the state court actions constitute improper
forum shopping and abuse of discovery, and the state court actions justify unconditional stay.
The undersigned first turns to BAPTKO’s assertion that the Foundation Parties failed to
follow the procedures outlined in Local Rule 37.1 in the filing of the instant Motion to Enforce
Protective Order (Doc. No. 602) and Motion for Attorney’s Fees and to Stay Pending Appeal (Doc.
No. 604). BAPTKO argued that the Foundation Parties filed the instant motion without having a
meet and confer with BAPTKO, and without participating in a telephonic status conference with
the Magistrate Judge, as required by the local rules.
Local Rule 37.1 dictates civil discovery motions. The Rule provides as follows:
(A) 	OBLIGATION TO CONFER
A party may not file a motion concerning a discovery or scheduling dispute (e.g., a
motion to compel discovery, motion for sanctions, motion for protective order, or
motion to amend scheduling order) until the parties have conferred, either in person,
by telephone, or by other reliable, real-time electronic means, to make a reasonable,
good faith effort to resolve the dispute without involving the court. A written
demand for relief, including a demand through email, is not sufficient. The moving
party must make a reasonable effort to confer, and the opposing party must make a
reasonable effort to participate.
(B) 	OBLIGATION FOR CONFERENCE WITH MAGISTRATE JUDGE
In addition to the requirements in subsection (A), the parties may not file a motion
concerning 	a 	discovery 	or 	scheduling 	dispute 	until 	after 	the 	parties 	have
participated in a conference with the assigned magistrate judge unless the court
grant sleave to file the motion. The parties must contact the chambers of the
assigned magistrate judge to request a conference be scheduled.
(C) 	SANCTIONS FOR NON-COMPLIANCE
A party’s failure to comply with the requirements of this rule may result in the court
summarily granting or denying the motion, as well as awarding costs and
reasonable attorney’s fees.
D.N.D. Civ. L.R. 37.1.
Case 1:20-cv-00138-DMT-CRH Document 642 Filed 02/11/26 Page 25 of 39

26
In response to BAPTKO’s contention that the Foundation Parties failed to comply with the
requirements of Local Rule 37.1, the Foundation Parties averred that such objection is meritless.
(Doc. No. 617 at 2). The Foundation Parties argued that BAPTKO initiated parallel litigation in
multiple jurisdictions utilizing information obtained through post-judgment discovery subject to
the Protective Order, and “the Foundation Parties need not engage in a ‘meet and confer’ process
to enforce these continued violations of the Protective Order.” (Id.). In support of this argument,
the Foundation Parties pointed to the state court complaints, asserting that the violations were
evident on the face of the complaints, which were filed without permission of this court, or by
seeking modification of the Protective Order, and correspondence between the parties’ counsel
further demonstrates BAPTKO was aware of the violations but continued its conduct anyway.
(Id.). As such, the Foundation Parties argued that it properly brought the matter to the court’s
attention, and BAPTKO was fully aware of the Foundation Parties’ position regarding use of
discovery in other proceedings, and the court explicitly extended the Protective Order to post-
judgment discovery.
While the undersigned cautions the Foundation Parties to heed the local rules more closely
in the future, it is not inclined to recommend denial of the motion on that basis in this specific
instance. The court was aware of this motion prior to the October 7, 2025, hearing and ordered the
parties to prepare accordingly in advance of the hearing, and no such argument was made at the
time of the hearing. As such, the undersigned shall consider the merits of the motion.
The Foundation Parties additionally request the court enforce the Amended Protective
Order and enjoin BAPTKO from any further violations. The undersigned has thoroughly reviewed
the Amended Protective Order and its prior ruling on the Motion to Enforce the Stipulated
Case 1:20-cv-00138-DMT-CRH Document 642 Filed 02/11/26 Page 26 of 39

27
Protective Order and for Sanctions. (See Doc. Nos. 80-81, 170). The Amended Protective Order
states as follows:
16. 	Information that is designated as “Confidential” shall not be used for any
purpose except for the prosecution or defense of these Consolidated Cases unless
authorized by further order of this Court.
(Doc. No. 275 at 5). It further provides,
Except as the Court may otherwise expressly direct and subject to the further
conditions imposed by this Protective Order, information that is designated as
“Confidential” may be disclosed only to:
…
(l) Such other Persons by further order of the Court.
(Id. at 5-6). The Foundation Parties interpret this to mean that all information disclosed under the
Protective Order deemed confidential cannot be used for any purpose other than prosecuting or
defending this litigation in this specific case. However, in reading the language of the Protective
Order, and in the court’s order extending the Protective Order to post-judgment discovery
proceedings, this is simply not the case. The Protective Order specifically provides that
information designated as confidential may only be used for purposes of prosecution or defense of
the Consolidated Cases, unless authorized by further order of the court. The court also has authority
to order disclosure to other persons. Not only does this permit the parties to use such information
in prosecuting or defending this litigation, but the court also has the authority to permit the use of
information by further order.
At the omnibus hearing on October 7, 2025, the undersigned discussed the use of the
Amended Protective Order in depth with the parties. Notably, the undersigned noted throughout
the hearing that the Protective Order’s language permits the use of confidential information for the
prosecution or defense of the consolidated cases.
THE COURT: Well, and I think Mr. Bakke’s position is that part of
recovering the judgment on behalf of his client is determining whether there have
Case 1:20-cv-00138-DMT-CRH Document 642 Filed 02/11/26 Page 27 of 39

28
been fraudulent transfers of money that could otherwise be available to satisfy that
judgment. Am I right about that, Mr. Bakke?
MR. BAKKE: You’re absolutely spot on.
THE COURT: And that, to me, is mentioned in this protective order that we
have in place. Let me find that.
I’m looking at page 5 of the amended protective order, subpart (e),
paragraph 16: Confidential information shall not be used for any purpose except for
the prosecution or defense of these consolidated cases.
And I think Mr. Bakke’s point is that he’s prosecuting this case. Having
received a judgment, he’s trying to have his client realize on that judgment. And
part of that process is finding out whether money was fraudulently transferred at
some point or another. So to me that fits within the parameters of the existing
protective order. And do you disagree with that?
MR. SHAFFER: Slightly, Your Honor.
(Doc. No. 628 at 158). Of further interest is the Foundation Parties’ notation in its post-hearing
briefing:
The Foundation Parties do not oppose reasonable use of discovery materials
obtained here to enforce judgments and pursue valid claims related to the post-
judgment collection efforts, provided such use is conditioned upon any and all
receiving parties following the protections that this Court has put in place to
maintain the confidentiality of the information and protect the Foundation Parties’
interests.
(Doc. No. 633 at 7). It is evident that neither party disagrees with the use of discovery materials
obtained in the federal case being used to enforce the judgment and pursue valid claims related to
post-judgment collection, conditioned by the protections put in place, and yet the parties still
cannot agree on what constitutes appropriate disclosure. The Amended Protective Order permits
the parties to use information in the defense or prosecution of the case, or as otherwise directed by
the court. This means that under the Protective Order, BAPTKO has the right to use information
ascertained in the course of this matter to collect on the judgment, whether in state court or
otherwise.
Case 1:20-cv-00138-DMT-CRH Document 642 Filed 02/11/26 Page 28 of 39

29
The undersigned is also not convinced that BAPTKO violated the terms of the Protective
Order in the two state court proceedings. As previously noted, the Protective Order permits the use
of information in defending or prosecuting the consolidated cases. The purported purpose of the
state court proceedings is to assist in the collection of the judgment, which is in line with the
provisions of the Protective Order. Even if BAPTKO was incorrect in its assumption that the
confidential information could be used in the state court proceedings, there is no indication that
BAPTKO has revealed confidential information in the pleadings or other filings in the state court
proceedings and has instead requested the court permit it to use such documents and information
obtained in post-judgment discovery in the state court actions.
Such disclosure of confidential documents or information in the state court proceedings
was inquired about at the October 7, 2025, hearing, with counsel for BAPTKO questioning the
Foundation Parties’ counsel as to what was supposedly disclosed in the state court proceedings
that was produced in the federal court action.
THE COURT: Just for clarity, the documents that the witness was referring to were
used for informational purposes, I think was her testimony, in drafting the
complaint at state court. Is that what you were saying, Ms. Wood?
THE WITNESS: Yes, Your Honor.
Q. (MR. BAKKE CONTINUING) Okay. Let’s go through the documents
referenced there, the information.
So in this, in terms of the failure to pay, it talks about the earnout provisions
in the APA; correct?
A. on page 2?
Q. On page 2 and 3.
A. That is the header that I’m reading there, yes.
Q. Okay. So that’s – that’s not a document that was produced in post-judgment
discovery, is it?
A. No.
Case 1:20-cv-00138-DMT-CRH Document 642 Filed 02/11/26 Page 29 of 39

30
Q. Okay. And then let’s turn to page 4 of the federal lawsuit to recover unpaid
earnouts of money. Those talk about the judgments, the original judgment and the
amended judgment, both of which are publicly filed; correct?
A. Yes.
Q. Those weren’t produced by Foundation in post-judgment discovery, were they?
A. No, they were not.
Q. Okay. And then the transfers made with actual intent to hinder, delay or defraud
BAPTKO on – starting on paragraph 21, page 5 continuing on to page 6, in terms
of the sales documents, those documents that are referred to, the real estate
transaction documents, those are publicly available in Morton County through the
NDRIN system, are they not?
A. The reason you know to look for those is because of the closing binder that was
produced because that – as Mr. Slemko testified earlier, that whole transfer of
property was – involved a lease agreement, the – to, you know, free up capital. I
mean, it wasn’t just, like, direct. It wasn’t clear. The only way you know that is if
you look at the closing binder.
Q. Well, no. It would be a matter of just simply looking it up on NDRIN showing
who had the mortgages. It was Bravera Bank and Starion Bank for the real estate
and showing that the documents – because there were warranty deeds and related
documents filed, showing the property transferred from the CARS entities to the
Eide entities; correct? Specifically PKMC. Those are publicly available documents,
aren’t they?
A. The link to Foundation was the – cause like you just said, when you search that
it doesn’t come up FA ND CHEV, FA ND SUB owed that property. It comes up
with this CARS entity that owned it and then transferred it to the Eide entities. So
the only way you know that’s connected to Foundation is through the closing
binder.
Q. Well, except for during the case in federal court there was discussion in front of
the jury in open court and in deposition testimony that was not sealed where there
was discussion that Foundation had sold and was in the process of selling the real
estate and owned the real estate prior to CARS; correct? That’s all publicly
available information. You don’t need to look at –
A. I don’t think so.
Q. – anything that was produced by Foundation in post-judgment discovery, do
you?
A. I’m going to heavily disagree with that as an accurate portrayal of what was said
in open court in front of the jury.
Case 1:20-cv-00138-DMT-CRH Document 642 Filed 02/11/26 Page 30 of 39

31
(Doc. No. 628 at 147-50). The undersigned also inquired about confidential information used in
the filing of the state court actions.
THE COURT: Hang on once. The complaints have already been filed in these state
actions, am I right about that, Mr. Bakke?
MR. BAKKE: Yes.
THE COURT: And were documents attached as exhibits somehow to those
complaints or some such thing?
MR BAKKE: No.
THE COURT: So none of the confidential documents have been used in public
filings in the state court proceedings?
MR. BAKKE: Correct. We’d like to.
(Doc. No. 628 at 159). BAPTKO reaffirmed this in its post-hearing briefing. Because the
Protective Order permits the use of information obtained in the course of litigation to defend or
prosecute the Consolidated Cases, the undersigned is not inclined to find that BAPTKO has
violated the terms of the Protective Order or to otherwise recommend enforcement of the
Protective Order.
Next the undersigned turns to the Foundation Parties’ request that the court stay the North
Dakota and Texas state proceedings. This request is a non-starter. Not only do the Foundation
Parties request this court exert its authority over the state courts, but it also cites no caselaw to
support the contention that this court even has the authority to interfere with judgment collection
actions filed in state courts. While not binding precedent, the undersigned is persuaded by the
findings of the Southern District of New York.
Nothing in Rule 69(a) confines a judgment creditor to a single forum for its
collection proceedings. See Est. of Ungar v. Palestinian Auth., 412 F. Supp. 2d 328,
331 (S.D.N.Y. 206) (“Plaintiffs are not prohibited from maintaining parallel federal
and state causes of action to enforce a judgment.”). To the contrary: “[S]everal
courts have opined that filing concomitant state and federal proceedings in an effort
to satisfy an outstanding default judgment may be the most prudent court of action.”
Case 1:20-cv-00138-DMT-CRH Document 642 Filed 02/11/26 Page 31 of 39

32
Id. (collecting cases); see also Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty
Corp., 1993 WL 50528, at *2 (E.D.N.Y. Feb. 23, 1993) (“[T]he fact that plaintiff
has commenced proceedings in the New York State courts to enforce the federal
judgment does not preclude this court from granting discovery” under Rule
69(a)(2)) (collecting cases); 12 Federal Practice & Procedure § 3013 (“The fact that
an action is pending in state court to enforce the federal court judgment does not
preclude supplementary proceedings in aid of execution in the federal court.”).
Clinton Cap. Corp. v. 257 W. 21st St. Assocs., Inc., No. 16MC353LAKBCM, 2024 WL 1142210,
at *3 (S.D.N.Y. Feb. 28, 2024), report and recommendation adopted, No. 16-MC-353 (LAK),
2024 WL 1141045 (S.D.N.Y. Mar. 15, 2024).
Here, the state court proceedings initiated by BAPTKO stem from attempts to collect on
the federal judgment and are essentially collection actions. Best put by BAPTKO, “the assets at
issue have been moved to another state, and are outside of the subject matter jurisdiction of this
Court involving non-diverse parties and no federal question.” (Doc. No. 606 at 3). Because the
Foundation Parties fail to point to any legal authority under which this court can stay the state court
actions, beyond generally stating “[the need for a stay] stems from the Court’s inherent authority
to enforce its orders, prevent circumvention of its procedures, and ensure that discovery is not
weaponized for collateral litigation” (Doc. No. 633 at 15), and has not to the undersigned’s
knowledge requested the state courts stay their proceedings, there is no justification or authority
for this court to exert its authority over the state court actions.
The Foundation Parties likewise request the court stay post-judgment enforcement pending
appeal. The Foundation Parties previously filed a Motion to Stay Execution of Judgment and
supporting memorandum. (Doc. No. 534, 535). Therein, the Foundation Parties requested the court
enter an order staying the Judgment pending the court’s decision on various post-trial motions.
Notably,
The Foundation Parties are prepared to post a supersedeas bond to secure the
Judgment; however, it would be inefficient and unduly burdensome for them to
secure an initial bond now for a portion of the current Judgment amount and then
Case 1:20-cv-00138-DMT-CRH Document 642 Filed 02/11/26 Page 32 of 39

33
later obtain an additional bond once the Court determines the total amount due after
resolving the Fees/Costs Motion.
(Doc. No. 535 at 2). Moreover, “[s]taying execution of the Judgment pending resolution of the
Post-Trial Motions and the Fees/Costs Motion will not prejudice BAPTKO, as the Foundation
Parties remain willing to post an appropriate bond as necessary for a potential appeal to secure the
final judgment once determined.” (Id. at 3). Upon ruling on the post-trial motions, the court
deemed the Motion to Stay Execution of Judgment moot. (See Doc. No. 544).
The Foundation Parties now ask to stay post-judgment enforcement pending appeal;
however, circumstances are much changed since its initial motion. Particularly, the Foundation
Parties allege throughout its briefing that it is no longer in a position to post a supersedes bond.
(See Doc. No. 633 at 8).4
Federal Rules of Civil Procedure 62 governs the stay of proceedings to enforce a judgment.
Pursuant to this Rule, “[a]t any time after judgment is entered, a party may obtain a stay by
providing a bond or other security. The stay takes effect when the court approves the bond or other
security and remains in effect for the time specified in the bond or other security.” Fed. R. Civ. P.
62(b). “This means that ‘an appellant may obtain a stay of [a] money judgment during the
pendency of the appeal as a matter of right by posting an adequate supersedeas bond.’” Kelley v.
Westford Special Situations Master Fund, L.P., No. 19-CV-1073 (KMM/JFD), 2025 WL 2103730,
at *1 (D. Minn. July 28, 2025) (quoting Estate of Snyder v. Julian, No. 1:11-cv-24-LMB, 2014
WL 668191, at *1 (E.D. Mo. Feb. 20, 2014)).5 The Federal Rules of Appellate Procedure provide
4 Interestingly, in a memorandum filed in support of a Motion to Dismiss Plaintiff’s Amended Complaint in the North
Dakota state matter the Foundation Parties argued that although BAPTKO alleged it was insolvent, there is no such
insolvency. “Here, [BAPTKO] allege[s] no insolvency and plead[s] no facts suggesting the FA ND Entities had no
remaining assets, operations, or income. [BAPTKO’s] insolvency theory rests on a mischaracterization of financial
consequences, not legal criteria.” (See Doc. No. 592-2 at 17-18).
5 “Finally, subdivision (b) changes the provision in the former subdivision (d) that ‘an appellant’ may obtain a stay.
Under new subdivision (b), ‘a party’ may obtain a stay. For example, a party may wish to secure a stay pending
Case 1:20-cv-00138-DMT-CRH Document 642 Filed 02/11/26 Page 33 of 39

34
further relevant instruction. In filing a motion for stay, the party seeking the stay must first
ordinarily move for the following relief in the district court: (1) a stay of judgment or order of the
district court pending appeal; (2) approval of a bond or other security provided to obtain a stay of
the judgment; or (3) an order suspending, modifying, restoring, or granting an injunction while the
appeal is pending. Fed. R. App. R. 8(a)(1)(A)-(C).
“The purpose of a supersedeas bond is to secure the appellee from loss resulting from the
stay of execution.” Exec. Air Taxi Corp. v. Cty. of Bismarck, N.D., No. 1:04-CV-56, 2007 WL
559819, at *1 (D.N.D. Feb. 14, 2007) (quoting Fed. Prescription Serv., Inc. v. American Pharm.,
636 F.2d 755, 761 (D.C. Cir. 1980)) (internal quotation marks omitted). A supersedeas bond
generally is set at an amount equal to the judgment being appealed, however, the district court, at
its discretion, has the authority to waive the supersedeas bond requirement or set it at a lower
amount. Brakebill v. Jaeger, No. 1:16-CV-008, 2020 WL 13699062, at *1 (D.N.D. June 29, 2020);
see also Exec. Air Taxi Corp., 2007 WL 559819, at *1. The court may consider multiple factors
when determining whether to waive the bond requirement: “(1) the complexity of the collection
process; (2) the amount of time required to obtain a judgment on appeal; (3) the degree of
confidence that the district court has in the availability of funds to pay the judgment; (4) whether
the appellant’s ability to pay the bond is so plain the cost of the bond would be a waste of money;
and (5) whether the appellant is in such a precarious financial situation that the requirement to post
a bond would place other creditors of the appellant in an insecure position.” Exec. Air Taxi Corp.,
2007 WL 559819, at *1; see also Dillon v. Cty. of Chicago, 866 F.2d 902, 904-05 (7th Cir. 1988).
The first factor considered is the complexity of the collection process. Based on the extent
of filings, post-judgment motions, discovery disputes, the fact this is a consolidated case that is
disposition of post-judgment proceedings after expiration of the automatic stay, not yet knowing whether it will want
to appeal.” Fed. R. Civ. P. 62, advisory committee notes to 2018 amendment.
Case 1:20-cv-00138-DMT-CRH Document 642 Filed 02/11/26 Page 34 of 39

35
not only on appeal, but has also resulted in the filing of two state cases, and that one of the named
parties, Foundation Automotive Corp., is a Canadian corporation, it would be unreasonable to
assume that the collection process would be anything but complex.
The second factor looks to the amount of time required to obtain a judgment on appeal.
This matter has been pending on appeal since April 11, 2025. (Doc. No. 548). To date, the parties
have filed their briefs in the Eighth Circuit Court of Appeals, with only the scheduling of oral
argument, and the oral argument itself, remaining before the decision is made on appeal.
Upon consideration of the third factor, the undersigned is not confident in the ability of the
Foundation Parties to pay the Judgment. Although CFO Slemko testified that while the bond would
not put the Foundation Parties into bankruptcy, there was no means to pay it, and it would be
“another catalyst” towards bankruptcy. (See Doc. No. 628 at 92-93). The Foundation Parties
further argued that following the October 2025 hearing, it explored the option of obtaining a bond,
but senior secured creditors did not authorize it and were holding priority claims.6
The fourth factor looks to whether the appellant’s ability to pay the bond is so plain that
the cost of the bond would be a waste of money. Based on the parties’ briefing and arguments
before the court, it appears that the Foundation Parties are in a somewhat precarious financial
situation and their ability to pay the bond is in question. The Foundation Parties specifically note
that “[a] bond is not financially feasible under current circumstances.” (Doc. No. 633 at 8). While
the undersigned does not have all the information as to the current status of the Foundation Parties’
finances, this in itself is enough to cause concern that the Foundation Parties may be unable to pay
the bond.
6 Also noted in the Foundation Parties’ briefing is that “[t]he proceeds were allocated according to contractual priority:
first to senior secured lenders in order of their priority, then to operational creditors necessary to maintain the
business.” (Doc. No. 638 at 3) (internal citations omitted).
Case 1:20-cv-00138-DMT-CRH Document 642 Filed 02/11/26 Page 35 of 39

36
Finally, the fifth factor weighs whether the appellant is in such a precarious financial
situation that the requirement to post bond would place other creditors of the appellant in an
insecure position. In its briefing, the Foundation Parties advised that following the October 2025
hearing, the ability of obtaining a supersedeas bond was explored with its lenders and advisors.
(Doc. No. 633 at 9). However, senior creditors did not authorize a bond due to the company’s
current financial situation, which would render a bond unfeasible. (Id. at 10). Moreover, the
Foundation Parties opined that the collection efforts risk disrupting relationships with senior
lenders, and could lead to harm to stakeholders, including third-party creditors. (Id. at 15).
In stark contrast to the Foundation Parties’ allegations of financial woes, is BAPTKO’s
argument that the Foundation Parties do not claim to be in such a precarious situation as to place
other creditors in an unsecure position. (See Doc. No. 608 at 16). BAPTKO points to the fact that
the Foundation Parties previously claimed it could satisfy the judgment and were prepared to post
a supersedeas bond, and its continued employment of two to three attorneys, all of whom reside
outside the State of North Dakota. (Id. at 17). This matter was discussed at the time of the October
2025, hearing, at which two out-of-state attorneys personally appeared in this District. During
attorney Randall Bakke’s (“Mr. Bakke”) examination of CFO Slemko, Mr. Bakke questioned:
Q. Okay. Okay. And I’m also curious, has there been discussion at Foundation why
in, as an example, the state court lawsuit in Mandan that Foundation staffs
everything that occurs in that case with three lawyers?
A. Three? I’m –
Q. Yes, Ms. Woods, Mr. Shaffer, and a gentlemen [sic] by the name of Jack Zuger,
an attorney from St. Paul, Minnesota.
A. Right. Because we needed local counsel.
Q. Well, I guess if you’re in dire financial straits, why are you manning these cases
with up to three attorneys rather than one? Has there been discussion about that?
A. A lot. Yes.
Case 1:20-cv-00138-DMT-CRH Document 642 Filed 02/11/26 Page 36 of 39

37
(Doc. No. 628 at 49). BAPTKO argues this conduct demonstrates the Foundation Parties are not
in the dire financial situation it sets itself out to be in. (See Doc. No. 608 at 17).
Considering these factors, the undersigned is not convinced that a stay should be issued
without an adequate supersedeas bond. While the undersigned is mindful of the difficulties the
Foundation Parties are facing, the undersigned must also weigh the potential for it to go insolvent
during the pendency of appeal and post-judgment proceedings. As opined by the District of
Minnesota,
Defendants suggest that they should not be required to post a bond simply because
they cannot. But this fact weighs against the relief sought. Courts tend to waive the
bond requirement based on a conclusion that a judgment debtor is in such a
financially secure position that there is no reasonable likelihood a judgment creditor
will end up unable to collect after the appeals process is completed.
Kelley v. Westford Special Situations Master Fund, L.P., No. 19-CV-1073 (KMM/JFP), 2025 WL
2103730, at *2 (D. Minn. July 28, 2025); compare Willis Elec. Co., Ltd. v. Polygroup Ltd., No.
15-CV-3443 (JNE/DTS), 2024 WL 1653709, at *2 (D. Minn. Apr. 17, 2024) (“Given the
substantial amount of the judgment and the importance of securing it against the possibility of
Ploygroup’s insolvency during the appeal process, the Court finds that a bond for the full amount
of the judgment plus 10% for post-judgment interest, costs, and damages for delay is necessary.”
(internal citations omitted)), with Fed. Prescription Serv., Inc. v. Am. Pharm. Ass’n, 636 F.2d 755,
761 (D.C. Cir. 1980) (“The elements of the situation here were as follows: (1) the damage award
was $102,000, with action on the request for attorneys’ fees and costs being deferred pending
appeal because both parties had appealed on questions going to the merits; (2) the documented net
worth of the judgment debtor was $4.8 million, about 47 times the amount of the damage award;
(3) the judgment debtor was a long-time resident of the District of Columbia, and there was no
indication it had any intent to leave. In light of these factors, we cannot say the district court abused
Case 1:20-cv-00138-DMT-CRH Document 642 Filed 02/11/26 Page 37 of 39

38
its discretion in granting a stay on appeal without requiring a supersedeas bond.” (internal citations
omitted)).
The undersigned has previously addressed the potential complications with collecting the
judgment. “Am I requiring them to produce blood from a turnip then? Because the testimony was
they can’t afford it.” (Doc. No. 628 at 169). Similar conclusions have been addressed by other
courts in the Eighth Circuit; however, lack of funds is not reason enough for a stay without a
supersedeas bond. See Kelley v. Westford Special Situations Master Fund, L.P., No. 19-CV-1073
(KMM/JFP), 2025 WL 2103730, at *3 (D. Minn. July 28, 2025) (“Defendants do not address how
the amount of time required to resolve the appeal supports waiver and the record provides no basis
for the Court to have confidence in the availability of funds to pay the judgment. Indeed,
Defendants have gone to demonstrate the opposite. While this may ultimately mean that
Defendants are correct that the Trustee ‘cannot squeeze blood from a stone,’ they provide no reason
why that reality should allow them to obtain a stay of execution of execution of the judgment
without posting a supersedeas bond.” (internal citations omitted)).
Based on the Foundation Partes’ current financial position, and as dictated by relevant
caselaw, the undersigned recommends that the court require a supersedeas bond for the full amount
of judgment, plus 10% for post-judgment interest, costs, and damages. The undersigned further
recommends that upon posting the bond, a stay be entered pending resolution of the appeal to the
Eighth Circuit.
Finally, the Foundation Parties request the court require BAPTKO and its counsel to pay
reasonable attorney’s fees and expenses incurred in bringing the instant motion. As previously
opined, the issuance of reasonable fees and expenses is dictated by Federal Rules of Civil
Procedure 37.
Case 1:20-cv-00138-DMT-CRH Document 642 Filed 02/11/26 Page 38 of 39

39
An award of reasonable attorney’s fees and expenses is not justified here. Each party shall
be responsible for its own fees and costs. While the Foundation Parties argue it was forced to
expend substantial resources in addressing BAPTKO’s misconduct and the pending motions, the
undersigned reminds both the Foundation Parties and BAPTKO that it takes two to tango. The
undersigned is also not so quick to forget that it had to order disclosure of post-judgment discovery
on multiple occasions and had to do so yet again. The undersigned cautions against continued
failure to fully comply with the court’s orders.
IV. 	Conclusion
For the reasons articulated above, the undersigned recommends that BAPTKO’s Motion to
Compel Discovery, For Sanctions, and For Expedited Decision (Doc. No. 552) be GRANTED IN
PART. BAPTKO’s Motion to Use Documents and Information Obtained in Post-Judgment
Discovery (Doc. No. 590) be GRANTED. The Foundation Parties’ Motion to Enforce Protective
Order (Doc. No. 602) be DENIED and the Motion for Attorney’s Fees and to Stay Pending Appeal
(Doc. No. 604) be GRANTED IN PART. Finally, the parties’ counsel are encouraged to recall
their civility and remember that they are working in the best interests of their clients, not ad
hominem attacks on one another.
NOTICE OF RIGHT TO FILE OBJECTIONS
Pursuant to D.N.D. Civ. L.R. 72.1(D)(3), any party may object to this recommendation within
seven (7) days after being served with a copy of this Report and Recommendation. Failure to file
appropriate objections may result in the recommended action being taken without further notice
or opportunity to respond.
Dated this 11th day of February, 2026.
/s/ Clare R. Hochhalter
Clare R. Hochhalter, Magistrate Judge
United States District Court
Case 1:20-cv-00138-DMT-CRH Document 642 Filed 02/11/26 Page 39 of 39