United States District Court, D. Nebraska
KEVIN E. BURNS, Plaintiff,
FIRST NATIONAL BANK OF OMAHA, Defendant.
MEMORANDUM AND ORDER
SMITH CAMP CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Objection to Magistrate
Judge Cheryl Zwart's Order, ECF No. 26, filed by
Plaintiff Kevin Burns, who is proceeding pro se. For the
reasons stated below, the Objection will be overruled.
to the allegations in the Complaint, ECF No. 1, Burns
retained attorney Wright Walling to handle a family law
matter in the State of Minnesota and paid Walling a $5, 250
retainer fee with a Visa credit card, issued by Defendant
First National Bank of Omaha (FNBO). Burns was dissatisfied
with Walling's representation, and Burns notified FNBO
that he disputed the $5, 250 charge to his credit card. FNBO
refused Burns's demand to issue a chargeback and credit
his account. On August 9, 2017, Burns filed the Complaint,
which asserted various state and federal law claims against
Walling and FNBO. On October 17, 2017, the Clerk entered
default judgment against Walling in the amount of $5, 250.
FNBO filed an Answer, ECF No. 10, to the Complaint on October
April 25, 2018, Magistrate Judge Zwart held a telephonic
conference regarding a discovery dispute between Burns and
FNBO's counsel. Due to technical difficulties, the
conference was held off the record and Burns believes that,
based on Magistrate Judge Zwart's conduct during the
conference, she “deliberately and intentionally sought
to thwart appellate review of her actions and rulings by
preventing a record from being created.” Pl.'s
Mot., ECF No. 22, Page ID 63. Burns claims Magistrate Judge
Zwart pandered to FNBO's counsel, engaged in ex parte
communications with FNBO's counsel, and made false and
defamatory statements about Burns's wife, Barbara Burns,
who attempted to present some of Kevin Burns's arguments
during the conference. Because Barbara Burns is not a lawyer,
Magistrate Judge Zwart issued an order the following day,
precluding Barbara Burns from “directly contacting
[FNBO] and its employees during the pendency of this
lawsuit” in a representative capacity. ECF No. 20, Page
ID 58. The order also addressed the discovery issues raised
by the parties prior to, and during, the conference.
April 26, 2018, Burns moved to disqualify Magistrate Judge
Zwart under 28 U.S.C. § 455(a). ECF No. 22, Page ID 61.
On May 6, 2018, Magistrate Judge Zwart denied Burns's
motion, ECF No. 23, and he objects to the denial of that
party objects to a magistrate judge's order on a
nondispositive pretrial matter, a district court may set
aside any part of the order shown to be clearly erroneous or
contrary to law. Fed.R.Civ.P. 72(a); 28 U.S.C. §
636(b)(1)(A). “A finding is ‘clearly
erroneous' when although there is evidence to support it,
the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.” Chase v. Comm'r, 926 F.2d 737,
740 (8th Cir. 1991) (quoting United States v. U.S. Gypsum
Co., 333 U.S. 364, 395 (1948)). “An order is
contrary to law if it ‘fails to apply or misapplies
relevant statutes, case law, or rules of
procedure.'” Haviland v. Catholic Health
Initiatives-Iowa, Corp., 692 F.Supp.2d 1040, 1043 (S.D.
Iowa 2010) (quoting Knutson v. Blue Cross & Blue
Shield of Minn., 254 F.R.D. 553, 556 (D. Minn. 2008)).
“magistrate judge of the United States shall disqualify
[herself] in any proceeding in which [her] impartiality might
reasonably be questioned.” 28 U.S.C. § 455(a).
“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.” In re Steward, 828 F.3d
672, 682 (8th Cir. 2016). “[A] party is not entitled to
recusal merely because a judge is ‘exceedingly ill
disposed' toward them, where the judge's
‘knowledge and the opinion it produced were properly
and necessarily acquired in the course of the proceedings . .
. .'” Id. (quoting Liteky v. United
States, 510 U.S. 540, 551 (1994)).
suspicion that Magistrate Judge Zwart never experienced
technical difficulties during the discovery conference and
intentionally held the conference off the record for an
improper purpose does not satisfy his “substantial
burden of proving” she is not impartial. In re
Steward, 828 F.3d at 682. His suspicion is not based on
evidence but on his subjective belief that Magistrate Judge
Zwart's conduct during the conference indicates she
intended to “thwart” appellate review. See
Id. (affirming district court's denial of motion to
recuse where movant “supplied no evidence from which
[the Eighth Circuit] could conclude that [the district judge]
was not impartial”). Thus, the fact that the conference
was held off the record is not a basis for recusal.
Magistrate Judge Zwart's order precluding Burns's
wife, Barbara Burns, from contacting FNBO in her capacity as
Burns's representative a basis for recusal. Barbara Burns
is not a lawyer and is, therefore, not authorized to practice
law or represent her husband in this matter. NEGenR. 1.7(d).
Nevertheless, Burns argues a magistrate judge lacks the
authority to issue this particular order because it was
injunctive in nature. See 28 U.S.C. §
636(b)(1)(A) (A magistrate judge may not “determine . .
. a motion for injunctive relief.”). However,
precluding Barbara Burns from representing her husband in
connection with this case was not a grant of
“injunctive relief” for purposes of 28 U.S.C.
§ 636(b)(1)(A). Cf. Jones ex rel. Jones v. Corr.
Med. Servs., Inc., 401 F.3d 950, 951 (8th Cir. 2005)
(“A Federal court has inherent power to oversee
attorneys who appear before it.”). The order was,
therefore, neither an improper grant of injunctive relief nor
a basis for recusal.
has failed to demonstrate that any part of Magistrate Judge
Zwart's Order, ECF No. 23, was clearly erroneous or
contrary to law.
IT IS ORDERED: The Objection to Magistrate Judge Cheryl
Zwart's Order, ECF No. 26, filed by ...