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SouthLaw, P.C. v. Swanson

United States District Court, D. Nebraska

October 22, 2019

SOUTHLAW, P.C., Plaintiff,

          JOSEPH P. KELLY United States Attorney RICHARD E. ZUCKERMAN Principal Deputy Assistant Attorney General, SAMUEL PETER ROBINS Trial Attorney, Tax Division


          SHEILA A. BENTZEN Attorney for Neerpark, Inc. REMBOLT, LUDTKE LAW FIRM


          Cheryl R. Zwart United States Magistrate Judge

         During the call held today, Nancy Black argued the undersigned magistrate judge has a conflict of interest, colluded with Swanson's counsel to distribute funds to other parties and steal funds from Ms. Black, and purposefully delayed the progression of this case. (Filing No. 68). The court interprets these statements as a motion to recuse. For the reasons stated below, that motion will be denied.

         Every 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 [her] impartiality might be seeking to avoid the adverse consequences of [her] presiding over their case.

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). “[T]he 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). As the legislative history of 28 U.S.C. §455 explains, disqualification for lack of impartiality must have a reasonable basis. Litigants should not have to face a judge where there is a reasonable question of impartiality, but they are not entitled to a judge of their own choice. House Report No. 93-1453, adopting Senate Report No. 93-419, 3 U.S.Code Cong. & Admin. News, 93rd Cong., 2d Sess. 1974, pp. 6351-6363 at 6355.

         In support of her motion for recusal, Ms. Black claims that I previously worked with Thomas J. Monaghan, Swanson's counsel, as we have both worked for the federal government, and I therefore have a conflict of interest. I have never worked with or for Mr. Monaghan. With specific reference to any federal employment, Mr. Monaghan served as the U.S. Attorney for the District of Nebraska from 1993 until 2001. I have never worked for the U.S. Attorney's Office. My only government employment has been for the court, and that did not begin until August of 2001. And I have no relationship with Mr. Monaghan beyond reviewing, managing, and ruling on court filings. No. conflict of interest exists.

         As to Ms. Black's allegation that this court, and the undersigned magistrate judge specifically, colluded with Swanson's counsel to misappropriate and improperly distribute funds deposited with the court, those funds were distributed pursuant to a stipulation and court orders, copies of which are attached. (See, also Filing Nos. 50, 51, 61). I was not involved in those distributions or the decision to distribute any of the funds deposited with the court.

         Ms. Black's claim that I delayed case progression likewise has no merit. This case has been managed no differently than any other case. The speed of case progression depends largely on the number of filings, the number of parties, and the complexity of the issues. In this case, the parties navigated amounts owed to the IRS and to a homeowner's association, ultimately leaving only Swanson and Black as claimants to the remainder of the money deposited with the court.

         A reasonable observer informed of all the surrounding facts and circumstances would not conclude that I am unable to fairly ...

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