IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2024 ND 44

Donovan Meuchel a/k/a Donavon Meuchel, Plaintiff and Appellant

v.

Red Trail Energy, LLC, Defendant and Appellee

No. 20230127

Appeal from the District Court of Stark County, Southwest Judicial District, 

the Honorable Rhonda R. Ehlis, Judge.

AFFIRMED.

Opinion of the Court by Bahr, Justice.

Justin D. Hager, Bismarck, ND, for plaintiff and appellant.

Robin W. Forward (argued), Bismarck, ND, and Jessica L. Knox (on brief), 

Minneapolis, MN, for defendant and appellee.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

MARCH 7, 2024 

STATE OF NORTH DAKOTA
1

Meuchel v. Red Trail Energy

No. 20230127

Bahr, Justice.

[¶1] Donavon Meuchel appeals from a judgment dismissing his complaint 

requesting the district court order Red Trail Energy, LLC, to provide him 

certain information, and awarding attorney’s fees to Red Trail after the court 

denied Meuchel’s motion to compel discovery. We conclude the court did not err

in denying Meuchel’s request for information and did not err in awarding 

attorney’s fees to Red Trail. We affirm.

I

[¶2] Meuchel is a member and investor of Red Trail, a limited liability 

company. In October 2021, Meuchel commenced this action against Red Trail 

after his initial attempts to obtain information from Red Trail failed. Meuchel

sought the information after Red Trail solicited bids for a project that involved 

drilling two groundwater monitoring wells as part of a carbon dioxide capture 

project. Meuchel’s company had submitted an unsuccessful bid. Meuchel 

claimed a right to the information as a member of Red Trail under N.D.C.C. 

§ 10-32.1-42.

[¶3] Red Trail answered, asserting Meuchel was not entitled to the 

information under N.D.C.C. § 10-32.1-42 because the information he 

demanded was not “material to the rights and duties” of Meuchel under Red 

Trail’s operating agreement or N.D.C.C. ch. 10-32.1. In February 2022, Red 

Trail moved for summary judgment, which Meuchel opposed. Meuchel filed a 

motion to compel under N.D.R.Civ.P. 37, which Red Trail opposed. In May 2022, 

the district court held a hearing on the motions. In June 2022, the court 

entered orders denying summary judgment and Meuchel’s motion to compel.

[¶4] In December 2022, the district court held a bench trial, limited to 

whether Red Trail violated N.D.C.C. § 10-32.1-42. In an April 2023 

memorandum opinion, the court held Meuchel was not entitled to the 

information. After a May 2023 hearing, the court entered an order awarding 
2

attorney’s fees to Red Trail based on the court denying Meuchel’s motion to 

compel discovery. A final judgment was subsequently entered.

II

[¶5] This Court’s standard of review after a bench trial is well established:

“In an appeal from a bench trial, the district court’s findings 

of fact are reviewed under the clearly erroneous standard of 

review, and its conclusions of law are fully reviewable.” Larson v. 

Tonneson, 2019 ND 230, ¶ 10, 933 N.W.2d 84. A finding of fact is 

clearly erroneous if it is induced by an erroneous view of the law, 

if there is no evidence to support it, or if, after reviewing all of the 

evidence, we are convinced a mistake has been made. Id. The 

court’s findings are presumptively correct. Id. “[T]he district court 

is the determiner of credibility issues and we will not second-guess 

the district court on its credibility determinations.” Id.

Zavanna, LLC v. GADECO, LLC, 2023 ND 142, ¶ 5, 994 N.W.2d 133.

III

[¶6] Meuchel argues the district court erred in denying his request for 

information when it determined he did not have a right to the requested 

information from Red Trail.

[¶7] Red Trail is a board-managed limited liability company. The North 

Dakota Uniform Limited Liability Company Act, codified at N.D.C.C. ch. 10-

32.1, governs LLCs. Section 10-32.1-42, N.D.C.C., provides a LLC member’s 

right to information and provides, in relevant part:

1. In a member-managed or board-managed limited liability 

company, the following rules apply:

a. On reasonable notice, a member may inspect and copy 

during regular business hours, at a reasonable location 

specified by the company, any record maintained by the 

company regarding the activities, financial condition, and 

other circumstances of the company, to the extent the 

information is material to the rights and duties of the 

member under the operating agreement or this chapter.
3

b. The company shall furnish to each member:

(1) Without demand, any information concerning the 

activities, financial condition, and other circumstances 

of the company which the company knows and is 

material to the proper exercise of the rights and duties 

of the member under the operating agreement or this 

chapter, except to the extent the company can 

establish that it reasonably believes the member 

already knows the information; and

(2) On demand, any other information concerning the 

activities, financial condition, and other circumstances 

of the company, except to the extent the demand or 

information demanded is unreasonable or otherwise 

improper under the circumstances.

c. The duty to furnish information under subdivision b 

also applies to each member to the extent the member knows 

any of the information described in subdivision b.

(Emphasis added.)

[¶8] Under N.D.C.C. § 10-32.1-42(1)(a), addressing records, and N.D.C.C. § 

10-32.1-42(1)(b)(1), addressing information, a member has a right to “any 

record” and “any information” that is “material” to the member’s “rights and 

duties” under the operating agreement or N.D.C.C. ch. 10-32.1. Under 

N.D.C.C. § 10-32.1-42(1)(b)(2), a member has a right to “any other information” 

unless “the demand or information demanded is unreasonable or otherwise 

improper under the circumstances.”

[¶9] When interpreting and applying a uniform law’s provisions, this Court 

may look to comments “from the official editorial board for guidance[.]” Shafer 

v. Scarborough, 2022 ND 233, ¶ 21, 982 N.W.2d 864. The comments to this 

uniform law explain, “For the meaning of ‘material’ as applied to information, 

see Section 409(f), comment.” Unif. Ltd. Liability Co. Act (2013) § 410 cmt. 

subsection (a)(2)(A), 6C U.L.A. 115 (2016). The comment to section 409(f) reads, 

“Here and elsewhere in this act, information ‘is material if there is a 

substantial likelihood that a reasonable [decision maker] would consider it 

important in deciding how to vote’ or take other action under this act or the 

operating agreements.” Id. § 409 cmt. subsection (f), 6C U.L.A. 111 (quoting 
4

TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449 (1976)). See also 

Merriam-Webster’s Collegiate Dictionary 765 (11th ed. 2005) (defining 

“material” as “having real importance or great consequences”); American 

Heritage Dictionary 772 (2d Coll. ed. 1985) (defining “material” as “[o]f 

importance to a case; relevant”). In the context of records inspection, courts 

have held “[t]he determination of the reasonableness of a member’s request for 

the inspection of records of a limited liability company will depend on the 

circumstances of the case and is addressed to the court’s discretion.” 54 C.J.S. 

Limited Liability Companies § 38 (Aug. 2023 Update).

[¶10] Neither party moved to admit an operating agreement for Red Trail into 

evidence. Therefore, the district court limited its analysis to N.D.C.C. ch. 10-

32.1 in deciding whether Meuchel was entitled to the requested information 

about the bidding process. The court held Meuchel did not prove his demand 

for information was “material” to his rights and duties as a Red Trail member. 

Under N.D.C.C. § 10-32.1-42(1)(b)(1), the court found Meuchel did not provide 

evidence establishing he was entitled to information about the bidding process. 

The court found Meuchel was not a governor or board member of Red Trail and 

did not show he had voting power over Red Trail’s activities. Without evidence 

Meuchel could be involved with Red Trail’s bidding process, the court concluded

it could not find his request was “material.”

[¶11] Further, under N.D.C.C. § 10-32.1-42(1)(b)(2), the district court found 

Red Trail’s refusal to provide information on the bidding process was not 

unreasonable since it kept information regarding the bidding process 

confidential and disclosure of the bidding information could have impacted the 

company’s financial status. The court found Meuchel’s request was 

“unreasonable and improper” given the impact disclosure would have on future 

bids and Red Trail’s reputation. The court further held N.D.C.C. § 10-32.1-42(7) 

did not require an LLC to release information under restrictions, but that it 

“may” impose restrictions on information to be released.

[¶12] Meuchel argues the district court’s analysis is flawed and incorrect. He 

argues that, although the operating agreement was not produced at trial, Red 

Trail’s CEO testified that Meuchel as a member held both governance rights 
5

and financial rights, including being able to run for the board of governors and 

to vote for and request things to be on the annual meeting. Meuchel contends 

this “unrefuted testimony” shows that in denying information to him, Red Trail 

infringed on his rights to bring up information at the annual meeting, to 

possibly run for the board, or to suggest the board needed changes.

[¶13] Red Trail responds it was Meuchel’s burden to prove the demanded 

records and information are material to his rights and duties as a member 

under N.D.C.C. ch. 10-32.1, and the district court correctly decided he did not 

meet his burden. Red Trail asserts there were no votes or other actions 

Meuchel could take on its bidding process, and the project and bidding were 

under the purview of the board and board-designated individuals, rather than

the domain of Meuchel or other members. See N.D.C.C. § 10-32.1-39(4) (In a 

board-managed LLC, “[t]he activities and affairs of a limited liability company 

are to be managed by and under the direction of a board of governors[.]”). Red 

Trail contends members only have the “consent power” under N.D.C.C. § 10-

32.1-39(4)(q), which does not include management decisions on the bidding 

process; as such, Meuchel had no statutory right to be involved. Red Trail 

further argues Meuchel’s demand for records and information was 

“unreasonable and improper,” as the district court found. Red Trail asserts the 

court found its CEO’s testimony more persuasive than Meuchel’s on this point, 

particularly regarding the impact on the company’s financial status and the 

effect disclosure would have on its future bids and reputation.

[¶14] Meuchel largely bases his right to information on the testimony of Red 

Trail’s CEO. He does not rely on the operating agreement or provide a contrary 

statutory interpretation. Meuchel challenges the district court’s factual 

findings regarding “materiality” and “reasonableness.”

[¶15] We review the district court’s findings of fact under the clearly erroneous 

standard of review. We review the court’s exercise of its discretion in deciding 

a member’s information request under N.D.C.C. § 10-32.1-42 under the abuse 

of discretion standard. “The court abuses its discretion ‘when it acts in an 

arbitrary, unreasonable, or unconscionable manner, or when it misinterprets 

or misapplies the law.’” Don’s Garden Ctr., Inc. v. Garden Dist. Inc., 2024 ND 
6

25, ¶ 10 (quoting Olson Fam. Ltd. P’ship v. Velva Parks, LLC, 2023 ND 216, 

¶ 6, 997 N.W.2d 840).

[¶16] In exercising its discretion, the district court considered a member’s

rights in the context of a board-managed LLC governed by N.D.C.C. § 10-32.1-

39(4) and made a number of factual findings supporting its decision. The 

court’s factual findings are not clearly erroneous. “The district court was in the 

best position to weigh the evidence and determine the credibility of the 

witnesses[.]” Dronen v. Dronen, 2009 ND 70, ¶ 24, 764 N.W.2d 675. “Under the 

clearly erroneous standard, we do not reweigh the evidence nor reassess the 

credibility of witnesses[.]” Edison v. Edison, 2023 ND 141, ¶ 24, 994 N.W.2d 

151 (quoting Rustad v. Baumgartner, 2018 ND 268, ¶ 4, 920 N.W.2d 465).

[¶17] The district court’s findings of fact supporting its decision were not 

induced by an erroneous view of the law, there is evidence to support the 

findings, and after reviewing all of the evidence we are not convinced a mistake 

has been made. On the basis of the court’s “materiality” and “reasonableness” 

findings, we conclude disclosure of the bidding process was not mandated 

under the statute. Therefore, under the facts as found by the court, the court 

did not abuse its discretion in denying Meuchel’s request for information.

IV

[¶18] Meuchel argues the district court erred in awarding attorney’s fees to 

Red Trail after denying his motion to compel. 

[¶19] Under N.D.R.Civ.P. 37(a)(5)(B):

If the motion [to compel] is denied, the court may issue any 

protective order authorized under Rule 26(c) and must, after 

giving an opportunity to be heard, require the movant, the 

attorney filing the motion, or both to pay the party or deponent 

who opposed the motion its reasonable expenses incurred in 

opposing the motion, including attorney’s fees.

“[T]he court must not order this payment if the motion was substantially 

justified or other circumstances make an award of expenses unjust.” Id.

(emphasis added). “[W]hether a party acted in good faith under N.D.R.Civ.P. 
7

37(a)(1) is a question of fact.” PHI Fin. Servs. v. Johnston L. Off., P.C., 2016 

ND 114, ¶ 12, 881 N.W.2d 216. This Court reviews the decision on whether to 

grant an order to compel for an abuse of discretion and reviews factual findings 

supporting the decision, including whether a party, in good faith, attempted to 

confer, under the clearly erroneous standard. Id.

[¶20] The district court found Meuchel served a document on Red Trail labeled 

“Rule 37 Certification.” After identifying alleged deficiencies in Red Trail’s 

discovery responses, the document stated, “In an effort to secure the 

information without court intervention, you will be granted until 5:00 p.m. on 

Thursday, March 10, 2022 to secure the information and provide it according 

to the rules. Failure to do so will result in a Motion to Compel.” Red Trail 

responded to the document by sending Meuchel a letter explaining its answers 

and suggesting the parties have a conference to discuss the matter. Meuchel 

responded by bringing his motion to compel.

[¶21] The district court made the following findings:

Plaintiff’s counsel did not confer, nor did he attempt to confer

with Defendant’s counsel before making this Motion to Compel 

Discovery. His Rule 37 Certification is a demand pleading, telling 

Defendant’s counsel what is going to happen if they do not comply. 

Plaintiff’s counsel did not send an email, a letter or even make a 

telephone call in an attempt to “confer” or amicably resolve the 

issue.

. . . .

Plaintiff’s counsel did not confer with Defendant’s counsel. He

simply issued a demand. 

. . . .

Defendant’s counsel sent a letter after receiving the Rule 37 

Certification pleading, explaining their answers. They also 

suggested that they would be open to a teleconference to discuss 

the matter. That also did not occur. A good faith effort to resolve

this issue before court intervention did not occur.

. . . .

In looking at the totality of the circumstances, this Court 

finds that the Plaintiff did not make a good faith effort to 

meaningfully discuss the discovery dispute, and did not make a 
8

genuine attempt to resolve the dispute through non-judicial

means.

Based on its findings, the court denied Meuchel’s motion and awarded Red 

Trail its attorney’s fees and costs for the motion.

[¶22] After another hearing, the district court awarded attorney’s fees of 

$6,516.46. The court acknowledged 16.5 hours of work “may seem excessive,” 

but notes it did not find any duplicative billing and was unwilling to penalize 

the “thorough job in creating and preparing” Red Trail’s response to the motion.

[¶23] Meuchel argues the district court erred in finding he failed to confer or 

attempt to confer in good faith because he essentially failed to make a phone 

call. He argues the exhibit letters demonstrate the refusal to comply with 

discovery was a continuation of Red Trail’s refusal to provide the information. 

Meuchel’s counsel asserts he sincerely believed it would have been a waste of 

time for both parties to hold a phone conference and argues the amount of 

attorney’s fees awarded was unjust.

[¶24] Rule 37(a)(1), N.D.R.Civ.P., requires a motion to compel “include a 

certification that the movant has in good faith conferred or attempted to confer 

with the person or party failing to make discovery in an effort to obtain it 

without court action.” Thus, a facially valid motion to compel requires two 

components, an actual certification document and performance. Performance 

has two elements: the first element of performance is “good faith,” the second 

element is conferring (or attempting to confer). Shuffle Master, Inc. v. 

Progressive Games, Inc., 170 F.R.D. 166, 170 (D. Nev. 1996). “Each of these two 

subcomponents must be manifested by the facts of a particular case in order 

for a certification to have efficacy and for the discovery motion to be 

considered.” Id.

[¶25] The North Dakota Rules of Civil Procedure do not define what 

constitutes good faith under N.D.R.Civ.P. 37(a)(1). See PHI Fin. Servs., 2016 

ND 114, ¶ 10. However, in PHI Financial Services, this Court stated the good 

faith standard outlined in Shuffle Master is “persuasive as a guide to courts in 

looking to the totality of the circumstances to determine the existence or 
9

nonexistence of good faith under N.D.R.Civ.P. 37(a)(1).” PHI Fin. Servs., at 

¶ 11. “Because good faith determinations must be predicated upon the 

particularities of a given situation, whether a party acted in good faith under 

N.D.R.Civ.P. 37(a)(1) is a question of fact.” Id. at ¶ 12.

[¶26] Although Rule 37 does not identify detailed certification requirements, 

to effectuate the underlying policy of the rule, counsel seeking court-facilitated 

discovery must “adequately set forth in the motion essential facts sufficient to 

enable the court to pass a preliminary judgment on the adequacy and sincerity 

of the good faith conferment between the parties.” Shuffle Master, 170 F.R.D. 

at 171. “That is, a certificate must include, inter alia, the names of the parties 

who conferred or attempted to confer, the manner by which they 

communicated, the dispute at issue, as well as the dates, times, and results of 

their discussions, if any.” Id.

[¶27] Good faith conferral or attempts to confer generally require more than 

mere demand letters or emails. Conferring requires a party actually 

communicate by phone or in person, or at least sincerely attempt to do so. See, 

e.g., Arnold v. ADT Sec. Servs., Inc., 627 F.3d 716, 721 (8th Cir. 2010) (holding 

district court properly granted a motion to compel and did not clearly err in 

finding defendant “attempted to confer with Plaintiffs in good faith” when 

defendant repeatedly attempted to confer regarding the incomplete discovery 

responses and notified plaintiffs of the discovery deficiencies by letter before 

seeking court intervention); Robinson v. Potter, 453 F.3d 990, 994-95 (8th Cir. 

2006) (holding district court did not abuse its discretion in denying motion to 

compel when movant failed to show parties attempted to confer to resolve 

discovery request); Tijerina-Salazar v. Venegas, No. 19-CV-00074-DC-DF, 2021 

WL 6011137, at *7 (W.D. Tex. Dec. 20, 2021) (holding a single letter and an 

alleged call “placed eight days after the letter was sent, and four weeks before 

the motion was filed,” was insufficient to show plaintiff attempted to establish 

a “two-way communication”); Cardoza v. Bloomin’ Brands, Inc., 141 F.Supp.3d 

1137, 1145 (D. Nev. 2015) (denying motion to compel concluding a meet and 

confer was insufficient when devoid of meaningful discussion of the specific 

objections); Engleman v. United States, No. 4:14CV00601 JLH, 2015 WL 

12696094, at *1 (E.D. Ark. Sept. 24, 2015) (“Writing a demand letter and 
10

stating a deadline does not constitute conferring in good faith.”); Compass 

Bank v. Shamgochian, 287 F.R.D. 397, 398-99 (S.D. Tex. 2012) (stating movant 

must at least attempt a “two-way communication . . . to genuinely discuss any 

discovery issues and to avoid judicial recourse,” and not “treat the informal 

negotiation process as simply a formal prerequisite to judicial review of the 

discovery dispute”); In re Johnson, 408 B.R. 115, 120-21 (Bankr. S.D. Ohio 

2009) (stating conferring must be a personal or telephonic consultation during 

which the parties engage in meaningful discussion regarding their positions).1

[¶28] As explained in Shuffle Master, the “conferment” component of 

performance “requires a party to have had or attempted to have had an actual 

meeting or conference”:

Such an obligation is clear from the plain meaning of the word 

“confer”, which derives from the Latin roots com meaning 

“together” and ferre meaning “to bring.” Hence, the word literally 

translates as “to bring together.” The Court therefore finds that in 

order to bring a proper motion to compel under Rule 37(a)(2)(B), a 

moving party must personally engage in two-way communication 

with the nonresponding party to meaningfully discuss each 

contested discovery dispute in a genuine effort to avoid judicial 

intervention.

170 F.R.D. at 171.

[¶29] The holding in PHI Financial Services supports the district court’s 

findings and conclusion in this case. In PHI Financial Services, in addition to 

writing a letter, the movant attempted to contact the respondent to confer. The 

court found the movant attempted to confer in good faith before seeking the 

order to compel because it did not seek the motion until “after multiple 

exchanges,” including an actual attempt to confer. 2016 ND 114, ¶ 13. The 

respondent’s “inaction in answering the remaining interrogatories over the 

course of nearly two months and several communications indicates the parties 

1 Although not binding, federal court interpretations of a federal rule of civil procedure are highly 

persuasive in construing North Dakota’s corresponding rule. See PHI Fin. Servs., 2016 ND 114, ¶¶ 11-

12.
11

were unlikely to resolve the dispute without judicial intervention.” Id. Here, 

Meuchel sent a demand and did not attempt to communicate by phone or in 

person regarding the discovery disputes.

[¶30] The district court found Meuchel did not attempt to confer with Red 

Trail; he simply issued a demand. The court’s findings Meuchel never actually 

discussed or attempted to discuss the discovery disputes with Red Trail are not 

clearly erroneous. Based on the court’s findings, the court did not abuse its 

discretion in awarding attorney’s fees under N.D.R.Civ.P. 37(a)(5)(B).

[¶31] The court is considered an expert in deciding the amount of attorney’s 

fees, and the amount and reasonableness of the fees will not be overturned 

absent a clear abuse of discretion. Trosen v. Trosen, 2022 ND 216, ¶ 48, 982 

N.W.2d 527; Riemers v. State, 2008 ND 101, ¶ 8, 750 N.W.2d 407. Meuchel has 

not demonstrated the court abused its discretion in awarding the amount of 

attorney’s fees.

V

[¶32] We affirm the judgment.

[¶33] Jon J. Jensen, C.J.

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte

Douglas A. Bahr