Kreb v. Life Flight Network, LLC et al

Filing 149

MEMORANDUM DECISION AND ORDER: Plaintiffs Motion for Recusal or Disqualification of Judge (Dkt. 136 ) is DENIED; Plaintiffs Restated Motion for Recusal or Disqualification of Judge (Dkt. 138 ) is DENIED; and Plaintiffs Motion to Strike Defendants Memorandum in Opposition to PlaintiffsMotion for Recusal or Disqualification of Judge (Dkt. 144 ) is DENIED. See Dist. Idaho Loc. Civ. R. 7.1 (c)(1) (The responding party must serve and file a response brief, not to exceed twenty (20) pages, within twenty-one (21) days after service upon the party of the memorandum of points and authorities of the moving party.). A hearing on Defendants Motion for Summary Judgment (Dkt. 126 ) and Plaintiffs Motion to Strike (Dkt. 142 ) is set for November 24 , 2020 at 9:30 a.m. (Mountain). Also at this time, the Court will inquire about the status the ongoing administrative proceedings related to Plaintiffs AIR-21 complaint and its impact, if any, on the instant action. Instructions to remotely participate at the November 24, 2020 hearing will be sentby separate notice. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jd)

Case 3:16-cv-00444-REB Document 149 Filed 11/16/20 Page 1 of 8

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

Case No.: 3:16-cv-00444-REB

ROBERT KREB, an individual,

MEMORANDUM DECISION AND
ORDER RE:

Plaintiff,
vs.
JACKSONS FOOD STORES, INC., a Nevada
Corporation, JACKSONS JET CENTER, LLC, an
Idaho Corporation, and CONYAN AVIATION,
INC., d/b/a Jackson Jet Center, an Idaho
Corporation
Defendants,

PLAINTIFF’S MOTION FOR
RECUSAL OR DISQUALIFICATION
OF JUDGE
(Dkt. 136)
PLAINTIFF’S RESTATED MOTION
FOR RECUSAL OR
DISQUALIFICATION OF JUDGE
(Dkt. 138)
PLAINTIFF’S MOTION TO STRIKE
DEFENDANTS’ MEMORANDUM IN
OPPOSITION TO PLAINTIFF’S
MOTION FOR RECUSAL OR
DISQUALIFICATION OF JUDGE
(Dkt. 144)

Pending before the Court are Plaintiff’s (1) Motion for Recusal or Disqualification of
Judge (Dkt. 136), (2) Restated Motion for Recusal or Disqualification of Judge (Dkt. 138), and
(3) Motion to Strike Defendants’ Memorandum in Opposition to Plaintiff’s Motion for Recusal
or Disqualification of Judge (Dkt. 144). Having carefully considered the record and otherwise
being fully advised, the Court enters the following Memorandum Decision and Order:
I. DISCUSSION
Plaintiff’s efforts to disqualify the undersigned clearly emanate from the Court’s
decisions on various aspects of the case over its four-year duration – namely, (1) the March 12,
2018 Memorandum Decision and Order addressing Defendants’ first Motion for Summary
Judgment (after being removed from Washington state court and transferred from federal court
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in the Western District of Washington to this Court), (2) the circumstances surrounding its July
13, 2020 Order allowing Plaintiff’s counsel to withdraw, and (3) the deadlines leading up to the
currently-scheduled January 19, 2021 trial date – with Plaintiff generally asserting:
This motion serves to dispel any appearance of bad faith or perception of the
Plaintiff this Court has simply ruled justly and repeatedly against the claims of an
unreasonably disgruntled employee with a meritless cause and the Plaintiff simply
disagrees and is otherwise displeased with this Court. Nay, repeated conversations
and concerns raised in communications with Plaintiff’s former counsel whether an
equitable review and positive outcome was possible as each action and inaction by
defendants leveled more favorable outcomes of defendants despite little evidence
while overwhelming supply of exhibits pertinent to Plaintiff’s claims were
inconsequential to this Court which found unconscionable weight in the First of
Defendants’ Motion for Summary Judgment, to unfairly dismiss significant
portions of Plaintiff’s multiple cause of action. As well, this Court has appeared an
unlevel hand for relief from this Court regarding multiple revisions of deadlines
and favorable to Defendants while Plaintiff’s has been more restrictive to include
burdening Plaintiff’s Counsel with an Order to Show Cause Proceeding for their
unopposed Motion for Withdrawal from this case and stipulated by the Defendants.
Plaintiff believes beyond a shadow of a doubt, their Counsel’s Withdrawal from
this case was induced by this Court’s refusal to adjust case management deadlines
and account for the devastating affects upon our economy of the Covid Pandemic
when on May 13, 2020, this Court Set a trial date in January 2021 and partially
revised case management deadlines that were more favorable to the Defendants.
This order kept unrealistic deadlines and imposed an unfair burden upon Plaintiff’s
in light of the unyielding and incessant Covid Pandemic that was still escalating at
that time and while this Court was well briefed that Defendants had still not
complied with this Court’s Order for production of documents and Contempt
Proceedings were likely ensuing. Plaintiff’s counsel faced with an inordinate
situation in a never before encountered societal challenge were forced with the
same difficult decisions facing all Americans deeply affected by Covid to realize
drastic measures such as withdrawal in this Case offered a better solution for their
post Covid recovery than honoring the unfavorable and unfair inducement of this
Court holding wholly unrealistic and disproportionate demands upon Plaintiff’s
Claims than the obscure and unsupported defenses raised by Defendants.
Pl.’s Mem. ISO Mot. to Disq., pp. 3-4 (Dkt. 136-2).1

1

Plaintiff’s October 6, 2020 Restated Motion for Recusal or Disqualification of Judge
(Dkt. 138) claims to “restate” the bases for his original Motion for Recusal or Disqualification of
Judge (Dkt. 136), while separately taking issue with the Court’s September 16, 2020 Order
denying Plaintiff’s Motion for Leave to File Second Amended Complaint (Dkt. 134) in an
apparent attempt to further justify the disqualification/recusal of the undersigned. See generally
Restated Mot. (Dkt. 138).
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The standard for disqualification of a judge is established by 28 U.S.C. §§ 144 and 455.
Section 144 permits a party seeking disqualification to file a “timely and sufficient affidavit”
setting forth the basis for the party’s belief that “the judge before whom the matter is pending has
a personal bias or prejudice either against him or in favor of any adverse party.” 28 U.S.C.
§ 144. The affidavit must “state facts and the reasons for the belief that bias or prejudice exists.”
Id. Similarly, section 455 provides: “Any justice, judge, or magistrate judge of the United States
shall disqualify himself in any proceeding in which his impartiality might reasonably be
questioned.” 28 U.S.C. § 455(a);2 see also United States v. Hernandez, 109 F.3d 1450, 1453-54
(9th Cir. 1997).
The substantive standard for recusal under 28 U.S.C. §§ 144 and 455 is the same:
“[W]hether a reasonable person with knowledge of all the facts would conclude that the judge’s
impartiality might reasonably be questioned.” United States v. Studley, 783 F.2d 934, 939 (9th
Cir. 1986) (quotation omitted). Ordinarily, the alleged bias must stem from an “extrajudicial
source.” Liteky v. United States, 510 U.S. 540, 554-56 (1994). In Liteky, the U.S. Supreme
Court clarified the interplay between allegations of impartiality, personal bias, and prejudice
under 28 U.S.C. §§ 144 and 455, stating:
First, judicial rulings alone almost never constitute a valid basis for a bias or
partiality motion. In and of themselves, (i.e., apart from surrounding comments or
accompanying opinion), they cannot possibly show reliance upon an extrajudicial
source; and can only in the rarest circumstance evidence the degree of favoritism
or antagonism required . . . when no extrajudicial source is involved. Almost
invariably, they are proper grounds for appeal, not for recusal. Second, opinions
formed by the judge on the basis of facts introduced or events occurring in the
course of current proceedings, or prior proceedings, do not constitute a basis for a
bias or partiality motion unless they display a deep-seated favoritism or antagonism
2

Plaintiff cites to both 28 U.S.C. §§ 144 and 455(a). See generally Mem. ISO Mot. to
Disq. (Dkt. 136-2). Plaintiff also relies on 28 U.S.C. §§ 455(b)(1) and 455(b)(5)(ii) which
require that a judge disqualify himself where he (1) “has a personal bias or prejudice concerning
a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;” or (2)
“[i]s acting as a lawyer in the proceeding.” See id; 28 U.S.C. §§ 455(b)(1), 455(b)(5)(ii).
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that would make fair judgment impossible. Thus, judicial remarks during the
course of a trial that are critical or disapproving of, or even hostile to, counsel, the
parties, or their cases, ordinarily do not support a bias or partiality challenge. They
may do so if they reveal an opinion that derives from an extrajudicial source; and
they will do so if they reveal such a high degree of favoritism or antagonism as to
make fair judgment impossible. . . . Not establishing bias or partiality, however,
are expressions of impatience, dissatisfaction, annoyance, and even anger, that are
within the bounds of what imperfect men and women, even after having been
confirmed as federal judges, sometimes display. A judge’s ordinary efforts at
courtroom administration – even a stern and short-tempered judge’s ordinary
efforts at courtroom administration – remain immune.
Id. at 555 (internal citation omitted, emphasis in original). Importantly, disqualification is not
required where only vague allegations of bias and prejudice are asserted. See Focus Media, Inc.
v. Nat’l Broadcasting Co. (In re Focus Media, Inc.), 378 F.3d 916, 930 (9th Cir. 2004). For the
reasons that follow, the undersigned has thoroughly reviewed the record and concludes that
Plaintiff has not shown that 28 U.S.C. §§ 144 or 455 applies in this case.
First, to the extent Plaintiff’s disqualification argument is premised upon how the Court
has resolved substantive and procedural issues in the case (namely the (1) March 12, 2018
Memorandum Decision and Order granting, in part, and denying, in part, Defendants’ first
Motion for Summary Judgment, and (2) September 16, 2020 Order denying Plaintiff’s Motion
for Leave to File Second Amended Complaint (see supra)), the argument is misplaced. In those
rulings, the Court analyzed and decided then-pending issues against applicable legal standards.
Plaintiff disagrees with these rulings; however, without more, Plaintiff has not shown that
possible3 errors contained therein were the “product[ ] of deep-seated favoritism or antagonism

3

Despite Plaintiff’s arguments to the contrary, the Court stands by its rulings; indeed,
before the at-issue Motion, there was never a challenge to the March 12, 2018 Memorandum
Decision and Order (now over two years old). Additionally, that the Court resolved Plaintiff’s
Motion for Leave to File Second Amended Complaint before Defendants formally objected to it
is not improper and separately ignores both the “good cause” and “leave of court” aspects to such
a request under FRCP 16(b) and FRCP 15(a)(2). See, e.g., 9/16/20 Order, p. 4 (Dkt. 134)
(“Therefore, Rule 16(b) applies, requiring Plaintiff to show good cause to amend the Case
Management Order pursuant to Rule 16 before he is permitted to file an amended pleading.”).
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that made fair judgment impossible.” In re Focus Media, 378 F.3d at 930. Moreover, even
erroneous rulings – in and of themselves – are not ipso facto evidence of bias and cannot support
disqualification/recusal. See F.J. Hanshaw Enters., Inc. v. Emerald River Dev., Inc., 244 F.3d
1128, 1145 (9th Cir. 2001) (“Judges are known to make procedural and even substantive errors
on occasion. The errors alleged here would be the basis for appeal, not recusal.”).
Second, setting aside the lack of extrajudicial sources of bias favoring Defendants,
Plaintiff’s characterization of the Court’s handling of his previous counsel’s efforts to withdraw
misses the point. When Plaintiff’s counsel moved to withdraw on July 2, 2020, the Court had
already set a January 2021 trial date (with related pre-trial deadlines) via a May 13, 2020 Order
Amending Case Management Deadlines and Order Setting Trial (Dkt. 114). Doing so was part
and parcel of the Court’s responsibility to manage the case toward a resolution. Therefore, as is
required of the Court under such circumstances, Plaintiff’s counsel’s request to withdraw was
considered in the context of possible prejudice to Plaintiff himself, as the Court indicated:
[A]s the [Local Civil Rule 83.6(c)] describes, the attorney (or firm) who is the sole
representative for a party may not withdraw without leave of court. Whether good
cause exists is a discretionary decision for the Court. The motion to withdraw here
does not contain any information on which the Court can determine whether such
good cause exists and in the absence of such information, the Court is left to
conclude that there is an insufficient showing of good cause. This question is
especially significant in light of the age of this case, an upcoming January 2021
trial date and, most immediately, upcoming pre-trial deadlines.
Accordingly, the Court orders counsel for Plaintiff to show good cause why the
motion to withdraw should be granted, on or before July 9, 2020. Counsel for
Plaintiff shall also provide Plaintiff with copies of the underlying motion, this
Order, and any subsequent submissions in relation to the motion/Order.
7/6/20 Order, p. 1 (Dkt. 118) (internal citations omitted, emphasis added). In other words, the
Court’s hesitation in immediately allowing Plaintiff’s counsel to withdraw (and instead asking
for a showing of good cause) was anchored in the possible harm that might befall Plaintiff if his
counsel withdrew from the case at that point in time. See, e.g., IRPC 1.16 (b)(1) (“[A] lawyer
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may withdraw from representing a client if withdrawal can be accomplished without material
adverse effect on the interests of the client . . . .”) (emphasis added). The subsequently-filed
Memorandum in Support of Motion for Leave to Withdraw (Dkt. 120) in response to the Court’s
order to show cause allayed those concerns, as it evidenced that notwithstanding counsel’s
difficulty in representing several clients (including Plaintiff) because of the business-related
disruptions arising out of the COVID-19 pandemic, Plaintiff would not be prejudiced, stating:
[T]rial is still six months away and there are no other pending hearing dates.
Plaintiff has consented to our withdrawal and has indicated he will either hire a
different attorney or represent himself moving forward. There will be sufficient
time for Plaintiff and/or his new counsel to adequately prepare for trial. Defendants
have filed their non-opposition to this Motion.
Based on the foregoing, these circumstances have and will continue to create an
unreasonable financial burden for Strindberg & Scholnick, LLC. As such,
Strindberg & Scholnick, LLC seeks to immediately withdraw from further
representation of Plaintiff, including any and all issues or proceedings in this
matter. Other than the trial in January 2021, there are no hearing dates pending.
The Pretrial deadlines are in December of 2020.
7/9/20 Mem. ISO Mot. for Leave to Withdraw, pp. 5-6 (Dkt. 120); see also Kreb Dec. (Dkt. 1202) (Plaintiff consenting to counsel’s withdrawal). Satisfied that Plaintiff’s interests were
appropriately considered and accounted for, the Court permitted his counsel’s withdrawal on
July 13, 2020 (Dkt. 121).4
Third, in asserting that the Court unfairly imposed case management deadlines to his and
his then-attorneys’ detriment, Plaintiff misunderstands (though perhaps he was simply unaware)
the actual coordination between all parties (via stipulation or joint filings) that went into setting
those deadlines. The following timeline is illustrative on this point:

4

On August 3, 2020, Plaintiff notified the Court that he would represent himself moving
forward. See Not. of Appearance (Dkt. 123). On August 10, 2020, Plaintiff requested that he be
allowed to participate in certain court proceedings remotely in light of the COVID-19 pandemic.
See Request (Dkt. 124). The Court granted that request two days later (though still requiring
personal attendance at the scheduled trial in Boise, Idaho). See 8/12/20 Oder (Dkt. 125).
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

On March 12, 2018, the Court granted, in part, and denied, in part, Defendants’
Motion for Summary Judgment (Dkt. 77). Additionally, the Court granted
Plaintiff’s Motion for Leave to File Amended Complaint. On March 26, 2018,
Plaintiff filed an Amended Complaint (Dkt. 78).



Following a Joint Status Report (Dkt. 86) from the parties, the Court entered a Case
Management Order (Dkt. 87) governing the deadlines moving forward. Therein,
the Court set a February 22, 2019 deadline to amend pleadings and join parties.



By stipulation of the parties (Dkt. 90), on April 12, 2019, the Court extended expert
disclosure deadlines, the expert discovery deadline, and the dispositive motions
deadline.



On July 17, 2019, Defendants moved to stay the proceedings in light of Plaintiff’s
ongoing administrative proceedings related to his AIR-21 complaint and its
potentially preclusive effect (Dkt. 104). On January 30, 2020, the Court denied
Defendants’ request to stay the action and (1) requested that the parties file a
stipulated list of available trial dates, while (2) requesting that the parties file a joint
status report updating the Court of the status of the action (Dkt. 111).



On February 14, 2020, the parties filed a Joint Status Report (Dkt. 112) and,
following informal correspondence with the Court, an Amended Joint Status Report
on May 4, 2020 (Dkt. 113).5 On May 13, 2020, the Court extended various expert
disclosure deadlines, the expert discovery deadline, the mediation deadline, and the
dispositive motion deadline (Dkt. 114). Additionally, the Court set a January 19,
2021 trial date.



By stipulation of the parties (Dkt. 115), the Court extended various expert
disclosure deadlines on May 21, 2020 (Dkt. 116).



On July 2, 2020, Plaintiff’s counsel moved to withdraw (Dkt. 117). On July 13,
2020, the Court granted Plaintiff’s counsel’s request to withdraw (Dkt. 121). On
August 3, 2020, Plaintiff indicated that he would represent himself pro se (Dkt.
123).
All of this makes clear that in setting case management deadlines (including trial dates),

the Court worked collaboratively with both Plaintiff’s and Defendants’ counsel – even after the
COVID-19 pandemic began to place previously-unanticipated restrictions on the parties’ abilities

5

Therein, the parties stated: “To the extent the Court still would like an election of a
trial date, the parties agree that, even considering all of the discovery remaining, they can be
ready for trial staring the week of November 2, 2020.” Am. Joint Status Rpt., p. 3 n.1(Dkt. 113).
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to prepare for trial. Any suggestion or implication that these deadlines and potential trial dates
are more favorable to one side than the other is simply incorrect.
These reasons combine to reflect a typical case before the Court; they do not support a
contention of bias or partiality that would support recusal or disqualification.
II. ORDER
Based on the foregoing, IT IS HEREBY ORDERED that:
1.

Plaintiff’s Motion for Recusal or Disqualification of Judge (Dkt. 136) is DENIED;

2.

Plaintiff’s Restated Motion for Recusal or Disqualification of Judge (Dkt. 138) is

DENIED; and
3.

Plaintiff’s Motion to Strike Defendants’ Memorandum in Opposition to Plaintiff’s

Motion for Recusal or Disqualification of Judge (Dkt. 144) is DENIED. See Dist. Idaho Loc.
Civ. R. 7.1 (c)(1) (“The responding party must serve and file a response brief, not to exceed
twenty (20) pages, within twenty-one (21) days after service upon the party of the memorandum
of points and authorities of the moving party.”).
4.

A hearing on Defendants’ Motion for Summary Judgment (Dkt. 126) and Plaintiff’s

Motion to Strike (Dkt. 142) is set for November 24, 2020 at 9:30 a.m. (Mountain).
Also at this time, the Court will inquire about the status the ongoing administrative
proceedings related to Plaintiff’s AIR-21 complaint and its impact, if any, on the instant
action. Instructions to remotely participate at the November 24, 2020 hearing will be sent
by separate notice.

DATED: November 16, 2020
_________________________
Ronald E. Bush
Chief U.S. Magistrate Judge

MEMORANDUM DECISION AND ORDER - 8