Brian LOBERG, Plaintiff, v. CATERPILLAR INC., Defendant Case No. 3:19-cv-012 United States District Court, D. North Dakota Signed October 20, 2021 Counsel Brian Loberg, West Fargo, ND, Pro Se. Andrew D. Parker, Pro Hac Vice, Lori Johnson, Pro Hac Vice, Parker Daniels Kibort LLC, Jordon Greenlee, Pro Hac Vice, Minneapolis, MN, Sean T. Foss, First International Bank & Trust, Stephen Welle, O'Keeffe, O'Brien, Lyson & Foss Ltd., Fargo, ND, for Plaintiff. Joseph S. Turner, Katherine Mendez, Pro Hac Vice, Sharilee Smentek, Pro Hac Vice, Seyfarth Shaw LLP, Chicago, IL, for Defendant. Hovland, Daniel L., United States District Judge ORDER ADOPTING IN PART REPORT AND RECOMMENDATION *1 Before the Court are two motions: “Defendant's Second Motion for Finding of Contempt Against Third Party Carline Conrad” and “Defendant's Second Motion for Sanctions” filed on July 1, 2021, and July 15, 2021, respectively. See Doc. Nos. 145 and 153. Magistrate Alice R. Senechal issued a Report and Recommendation on August 10, 2021, in which she recommended the Plaintiff be sanctioned for his failure to supplement discovery responses and be prohibited from introducing any evidence about or seeking any damages for (1) emotional distress damages after August 8, 2019, or (b) back pay between April 19, 2019 and April 14, 2020. Judge Senechal also recommended third-party Caroline Conrad be found in contempt and ordered to pay a monetary sanction if she did not either (1) produce the requested documents or (2) state under oath she possesses no responsive documents by August 27, 2021. See Doc. No. 165. Conrad filed an objection to the Report and Recommendation on August 27, 2021. See Doc. No. 166. Caterpillar Inc. (“Caterpillar”) filed a response to the objection on September 15, 2021. See Doc. No. 168. The Court has carefully reviewed the Report and Recommendation and the entire record, and finds the Report and Recommendation to be persuasive. Accordingly, the Court ADOPTS the Report and Recommendation (Doc. No. 38) in part and ORDERS that Loberg is prohibited from introducing any evidence about or seeking any damages for (1) emotional distress damages after August 8, 2019, or (2) back pay between April 19, 2019, and April 14, 2020. Accordingly, the Court GRANTS Caterpillar's motion for sanctions (Doc. No. 153). In the Report and Recommendation, Judge Senechal recommended the district judge order a monetary sanction be entered against Conrad if “by August 27, 2021 Conrad did not either (1) produce the requested documents, or (2) state under oath that she possesses no responsive documents.” See Doc. No. 165, p. 11. While Conrad filed an objection on August 27, 2021, she did not produce the requested documents or state under oath that she possesses no responsive documents. Under those circumstances, Judge Senechal recommended monetary sanctions be entered against Conrad. While the Court agrees ordering Conrad to pay monetary sanctions is appropriate under the circumstances, the Court is cognizant that prior to the Report and Recommendation, Conrad was not notified by the Court that if she did not comply with the subpoena she may be found in contempt under Federal Rule of Civil Procedure 45(g). Previously, Judge Senechal unequivocally ordered Conrad to “produce all documents responsive to the subpoena within seven days of this order.” See Doc. No. 138. However, in the Order of June 9, 2021, Conrad was not notified that non-compliance could result in the Court finding her in contempt and imposing sanctions under Rule 45(g). The Court is aware that Caterpillar's motion for contempt as well as the Report and Recommendation may have implicitly put Conrad on notice that monetary sanctions may be imposed by the Court. Nonetheless, out of an abundance of caution and with consideration of the significance of imposing sanctions on a non-party, the Court ORDERS Conrad to show cause by November 3, 2021, why she should not be held in contempt under Federal Rule of Civil Procedure 45(g) and ordered to pay monetary sanctions or have other sanctions imposed. To avoid the imposition of monetary sanctions Conrad can simply (1) produce the requested documents or (2) state under oath that she possesses no responsive documents. A failure to do either may result in civil or criminal contempt and/or monetary sanctions. *2 Accordingly, the Court DEFERS RULING on Caterpillar's motion for a finding of contempt against Conrad (Doc. No. 145) until November 3, 2021. IT IS SO ORDERED.