Fitzgerald v. Busby et al

Filing 55

ORDER denying 54 Motion to Reassign Case. Signed by Judge D. P. Marshall Jr. on 4/15/11. (kpr)

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

JONESBORO DIVISION

NATHANIEL L. FITZGERALD

v.

PLAINTIFF

Case No. 3:10-cv-46-DPM-JJV

DICK BUSBY; TERESA BONNER;

SCHRADER; and LINDSEY PETERSON

DEFENDANTS

ORDER
The Court denies that part of Fitzgerald's motion, Document No. 54, that
this case be assigned to another District Judge. The Court requests that
Magistrate Judge Joe J. Volpe rule on that part of the motion seeking his
recusal.
First, Fitgerald's motion is based in part on his disagreement with recent
rulings by the undersigned and Judge Volpe. Adverse rulings, however, are
not an adequate basis for disqualification. Lefkowitz v. Citi-Equity Group, Inc.,
146 F.3d 609, 611-12 (8th Cir. 1998) (internal citation omitted).
Second, Fitzgerald's motion asserts that Defendants' counsel is the
II

attorney for Judge D.P. Marshall family." Document No. 54, at 1. This is not
correct. As I disclosed to all parties by letter in late January, my sister hired

Rainwater, Holt & Sexton, P.A. to represent her in a social security matter.
She did so without my knowledge or involvement. Even though I did not
think her relationship with the Rainwater firm presented a basis for my
disqualification in this case, I wanted all the parties to know about it and
consider it. I also set a two-week period in which any party could get this
case randomly reassigned to another District Judge simply by asking the
Clerk to make the change. Document No. 33. I directed that I not be informed
who sought a new judge. Ibid. No party requested reassignment.
The Rainwater firm has never represented me. The firm has never been
lawyers for my family in general. In any event, my sister passed away 17
February 2011. And her death ended her relationship with the firm.
The Court's impartiality would not reasonably be questioned by an
average person on the street apprised of all the relevant facts. 28 U.s.C.A. §
455(a) (West 2006); Scenic Holding, LLCv. New Board ofTrustees ofthe Tabernacle

Missionary Baptist Church, Inc., 506 F.3d 656, 662-65 (8th Cir. 2007).
Fitzgerald's motion, Document No. 54, is denied as to me.

-2­

So Ordered.

D.P. Marshall Jr.

United States District Judge

-3­