United States District Court, D. Nebraska
KEVIN E. BURNS, Plaintiff,
FIRST NATIONAL BANK OF OMAHA, Defendant.
MEMORANDUM AND ORDER
R. Zwart United States Magistrate Judge
Burns has moved for my disqualification from this case.
(Filing No. 22). For the reasons stated below, the motion
will be denied.
judicial officer must satisfy herself that she is actually
unbiased toward the parties in each case and that her
impartiality is not reasonably subject to question.
The judge presiding over a case is in the best position to
appreciate the implications of those matters alleged in a
recusal motion. In deciding whether to recuse [her]self, the
trial judge must carefully weigh the policy of promoting
public confidence in the judiciary against the possibility
that those questioning his impartiality might be seeking to
avoid the adverse consequences of [her] presiding over their
In re Kansas Public Employees Retirement System, 85
F.3d 1353, 1358 (8th Cir. 1996) (quoting In re
Drexel, 861 F.2d 1307, 1312 (2d Cir. 1988). See also,
United States v. Balistrieri, 779 F.2d 1191, 1202-03
(7th Cir. 1985) (decisions with respect to
disqualification should be made by the judge sitting in the
case, and not by another judge.) “A party introducing a
motion to recuse carries a heavy burden of proof; a judge is
presumed to be impartial and the party seeking
disqualification bears the substantial burden of proving
otherwise.” Fletcher v. Conoco Pipe Line Co.,
323 F.3d 661, 664 (8th Cir. 2003).
recusal inquiry must be made from the perspective of a
reasonable observer who is informed of all the surrounding
facts and circumstances.” Cheney v. U.S. Dist.
Court for Dist. of Columbia, 541 U.S. 913, 924
(2004); O'Bannon v. Union Pac. R.R.
Co., 169 F.3d 1088, 1091 (8th Cir.1999);
Lunde v. Helms, 29 F.3d at 370. A judge must recuse
herself if her “impartiality might reasonably be
questioned, ” (28 U.S.C. §455(a)). But
she has an equal obligation not to recuse herself when there
is no reason to do so. Southwestern Bell Telephone Co. v.
F.C.C, 153 F.3d 520, 523 (8th Cir. 1998).
Disqualification for lack of impartiality must have a
reasonable basis. While litigants should not have to face a
judge where there is a reasonable question of impartiality,
they are not entitled to a judge of their own choice.
argues I 1) refused to record the April 24, 2018 hearing by
falsely stating the recording equipment was not working; 2)
failed to prepare for the hearing; 3) failed to rule on the
discovery issues presented by Plaintiff during that hearing;
4) pandered to defense counsel; 5) exhibited hostility and
bias against Plaintiff's wife, Barbara Burns, and
impermissibly entered an injunction against her by stating
Ms. Burns is not an attorney and cannot represent Kevin Burns
in this litigation, and in her capacity as Plaintiff's
account manager, she cannot contact defendant directly; and
6) engaged in ex parte conversations with defense counsel
prior to the hearing.
recording equipment I typically use for civil discovery
hearings is located in my chambers. The April 24, 2018
hearing at issue was my first hearing that day, and when I
tried to initiate the recording equipment, it failed to
operate. I was unable to quickly resolve the problem myself.
The court's IT personnel were called to my chambers
immediately and were present during the hearing, attempting
to fix the equipment. To date, the recording problem
intermittently reoccurs and the source of the problem has not
been identified. Simply stated, there is no truth to
Plaintiff's claim that I refused to record the hearing
and lied about the reason it was not recorded.
discovery hearings are convened in the hopes of limiting, if
not fully resolving, discovery battles through court-assisted
discussion. There is no guarantee that all issues raised will
be ruled on during those hearings. In preparation for the
April 24, 2018, I reviewed Plaintiff's submissions.
During the hearing, I asked for Defendant's response.
Defendant claimed it had emailed all the audio recordings
Plaintiff requested, but Plaintiff claimed he did not receive
all those emails. As I stated during the hearing, both sides
may be correct; that is, audio recordings can produce large
data files and email server filters may have stopped the
delivery of emails sent by defense counsel which contained
large recording attachments. So I ordered defense counsel to
copy the recordings he emailed to a flash drive and mail the
flash drive to Plaintiff-a measure which partially resolved
the Plaintiff's discovery disputes without the necessity
of formal briefing. As such, the discovery hearing did serve
the purpose of limiting the parties' disputes, and as to
the unresolved issues, I requested a formal motion and
briefing so I could fully understand the parties'
arguments before entering a ruling.
became evident during the hearing that Plaintiff and defense
counsel have difficulty communicating. I therefore instructed
the parties on steps they must take to open the lines of
communication while nonetheless prohibiting Plaintiff's
direct communication with Defendant, a represented party,
concerning this litigation. I also clarified that Plaintiff
cannot circumvent the prohibition of direct contact with
Defendant by having his wife speak with Defendant on
Plaintiff's behalf. Those communication requirements were
re-stated in my post-hearing written order. (Filing No. 20).
the April 24, 2018 hearing, Plaintiff wanted his wife to
argue some of the discovery dispute issues. After confirming
that Barbara Burns is not a licensed attorney, I entered an
order stating she cannot represent Plaintiff in this
litigation. (Filing No. 20). That order is not an
injunction based on the merits of the case, but rather an
exercise of the court's inherent authority to manage the
conduct of those before it, including those engaged in the
unauthorized practice of law. The undersigned magistrate
judge has the authority to enter such orders. Affeldt v.
Carr, 628 F.Supp. 1097, 1101 (N.D. Ohio 1985) (holding a
magistrate judge has authority to enter orders disqualifying
counsel and issuing gag orders; pretrial matters which are
not dispositive). While Barbara Burns was allowed to
represent Kevin Burns as his “de facto attorney”
at the lower court level of a Minnesota tax court proceeding,
Kevin E. Burns, Barbara R. Burns, Petitioners, v.
Commissioner of Revenue, 2010 WL 9545611
(Minn.), she is barred from doing so in this forum.
Jones ex rel. Jones v. Corr. Med. Servs., Inc., 401
F.3d 950, 952 (8th Cir. 2005).
support of his claim that I am biased and pander to the
defendant, Plaintiff states “Barbara Burns ha[s] never
been precluded from practicing any profession, including the
law, ” (Filing No. 22, at CM/ECF p. 3), and any claim
by me to the contrary is baseless gossip and defamatory.
However, due to her multiple and frivolous filings, Barbara
Burns has been barred from filing pro se cases in a Minnesota
court without prior approval of the Chief Judge, and she was
thereafter fined for attempting to circumvent that order by
naming others as plaintiffs (including her husband) to
obscure her own involvement in cases. Burns v.
Ungerman, No. A04-290, 2005 WL 468304 (Minn.Ct.App. Mar.
claims I had ex parte conversations with defense counsel.
This statement is untrue. I have never talked to defense