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Millard Gutter Co. v. State Farm Fire and Casualty Co.

United States District Court, D. Nebraska

December 22, 2016

MILLARD GUTTER COMPANY, a Corporation; Plaintiff,
v.
STATE FARM FIRE AND CASUALTY COMPANY, Defendant.

          MEMORANDUM AND ORDER

          Joseph F. Bataillon Senior United States District Judge.

         This matter is before the court sua sponte. This is an action for damages for alleged breach of contract and bad faith denial of insurance claims in connection with roof repairs. The plaintiff has assignments of roof-repair claims from a number of the defendant's insureds. On October 7, 2016, the magistrate judge held a hearing on the issue of appointment of a special master. The court has been informed that the parties are amenable to the appointment of Michael F. Kinney as special master although there is not agreement concerning his compensation by both parties.

         Pursuant to Rules 16, 26, and 53 of the Federal Rules of Civil Procedure and the inherent authority of the court to supervise and administer pending cases, the court finds the appointment of a special master will aid the resolution of this case and the formulation of a fair and efficient plan for the management of this case, and potentially the resolution of related cases.[1]

         The court finds that the special master shall bill the parties monthly and that his fees shall be paid equally by the defendant and the plaintiff. At the conclusion of the case either party may request reapportionment of the special master's fees based on the case's ultimate resolution.

         The court further finds Mr. Kinney should be granted an exemption from fees imposed by the Judicial Conference's Electronic Public Access fee schedule with respect to the electronic case files of this court that are available through the PACER System.

         The record shows Mr. Kinney has filed an affidavit, pursuant to Fed.R.Civ.P. 53(b)(3)(A), disclosing that he is not aware of any grounds that would result in disqualification under 28 U.S.C. § 455. See Filing No. 36. The court has considered Michael Kinney's qualifications to serve as special master and finds him highly qualified. Nothing in this order abrogates the litigants' rights to a trial by jury or appellate rights.

         Accordingly, IT IS ORDERED:

         1. Michael F. Kinney is appointed Special Master for the purpose of assisting the court in the resolution and management of this case;

         2. The Special Master shall bill the parties monthly and his fees shall be timely paid divided equally between the defendant and the plaintiff.

         3. Subject to any specifications or limitations stated in this Order, the Special Master shall have all the rights, powers, and duties as provided for a master under Rule 53 of the Federal Rules of Civil Procedure;

         4. The Special Master may conduct meetings with counsel and parties jointly or ex parte.

         5. Special Master Michael F. Kinney is instructed to:

(a) examine the pleadings, briefs, and evidence submitted by the parties;
(b) determine whether and to what extent there are any pre assignment ...

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