SouthLaw, PC v. Swanson, et al

Filing 70

MEMORANDUM AND ORDER that Ms. Black's oral motion to recuse is denied. Ordered by Magistrate Judge Cheryl R. Zwart. (Copy mailed to pro se party) (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SOUTHLAW, PC,
Plaintiff,
vs.
CHRISTINE L. SWANSON, NANCY
BLACK, et al.;

4:17CV3104
MEMORANDUM AND ORDER

Defendants.

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. 63516363 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 consider and rule on
issues raised in this case.
Accordingly,
IT IS ORDERED that Ms. Black’s oral motion to recuse is denied.

October 22, 2019.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

4:17-cv-03104-BCB-CRZ Doc # 50 Filed: 02/28/19 Page 1 of 3 - Page ID # 148

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SOUTHLAW, P.C.,

)
)
Plaintiff,
)
)
v.
)
)
CHRISTINE L. SWANSON, ET AL.,
)
)
Defendants.
)
__________________________________________ )

Case No. 4:17-cv-3104

JOINT MOTION TO DETERMINE PRIORITY
On August 11, 2017, SouthLaw, P.C. filed a Complaint for Interpleader against the
United States, Neerpark, Inc., Christine L. Swanson, and Nancy L. Black, requesting the
distribution of funds in the amount of $6,307.78. (Dkt. No. 1.) The funds are the proceeds that
remain following a Trustee’s sale of property located at 3321 Neerpark Dr., Lincoln, NE 68506,
jointly owned by Christine L. Swanson and Nancy L. Black. The Parties hereby stipulate and
move for entry of an order determining priority to the interpled funds as follows:
1. First, on account of Federal Tax Liens, notices of which were filed in 2012 and 2013
against Nancy L. Black, the United States is entitled to fifty-percent of the funds in
issue, or $3,153.89, payable to “United States Department of Justice.” (Cpt. ¶ 23 &
exh. D.)
2. Second, on account of liens recorded in 2017 against the subject property for unpaid
homeowner’s association dues and an unpaid roof account, Neerpark, Inc. is entitled
to $1,622.72. (Cpt. ¶ 24 & exh. E.)
3. Third, SouthLaw, P.C. is entitled to reasonable fees and costs associated with filing
and maintaining the Complaint for Interpleader. (Cpt. ¶ 25.)

1

4:17-cv-03104-BCB-CRZ Doc # 50 Filed: 02/28/19 Page 2 of 3 - Page ID # 149

This stipulation does not resolve priority as to any funds that remain following the
distributions above.

2

4:17-cv-03104-BCB-CRZ Doc # 50 Filed: 02/28/19 Page 3 of 3 - Page ID # 150

Dated: February 25, 2019

JOSEPH P. KELLY
United States Attorney
RICHARD E. ZUCKERMAN
Principal Deputy Assistant Attorney General
/s/ Samuel Peter Robins
SAMUEL PETER ROBINS
Trial Attorney, Tax Division
WI Bar No. 1094149
U.S. Department of Justice
P.O. Box 7238
Washington, D.C. 20044
202-307-0668 (v)
202-514-6770 (f)
[e-mail]

/s/ Sheila A. Bentzen
SHEILA A. BENTZEN
Attorney for Neerpark, Inc.
REMBOLT, LUDTKE LAW FIRM
1128 Lincoln Mall Suite 300,
3 Landmark Centre
Lincoln , NE 68508
[phone]
Fax: [phone]
[e-mail]

/s/ Thomas J. Monaghan
THOMAS J. MONAGHAN
Attorney for CHRISTINE L. SWANSON
DORNAN, TROIA LAW FIRM
1403 Farnam Street Suite 232
Omaha , NE 68102
[phone]
Email:[e-mail]

/s/ Liliana E. Shannon
LILIANA E. SHANNON (#22854)
SOUTHLAW, P.C.
10855 W. Dodge Rd., Suite 230
Omaha, NE 68154

/s/ Nancy Black
Nancy Black
4620 Eden Circle
Lincoln, NE 68506

3

4:17-cv-03104-BCB-CRZ Doc # 51 Filed: 03/08/19 Page 1 of 2 - Page ID # 151

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SOUTHLAW, P.C.,
Plaintiff,

4:17-CV-3104

vs.
ORDER
CHRISTINE L. SWANSON, et al.,
Defendants.
This is an interpleader case, in which SouthLaw, P.C. seeks a
determination of the defendants' interests in $6,307.78 in excess funds left over
from a trustee's sale. See filing 1. The parties have stipulated to a
determination of priority for most (but not all) of the funds, and have moved
the Court for an order declaring that priority. Filing 50. Based upon the
parties' stipulation,
IT IS ORDERED:
1.

The parties' stipulation and motion to determine priority
(filing 50) is granted.

2.

Pursuant to that stipulation:
a.

On account of federal tax liens, notices of which were
filed in 2012 and 2013 against Nancy L. Black, the
United States is entitled to fifty percent of the funds
in issue, or $3,153.89, payable to the "United States
Department of Justice."

4:17-cv-03104-BCB-CRZ Doc # 51 Filed: 03/08/19 Page 2 of 2 - Page ID # 152

b.

On account of liens recorded in 2017 against the
subject property for unpaid homeowner's association
dues and an unpaid roof account, Neerpark, Inc. is
entitled to $1,622.72.

c.

SouthLaw, P.C. is entitled to reasonable fees and costs
associated with filing and maintaining its complaint
for interpleader.

3.

The stipulation does not resolve priority as to any funds that
remain following the distributions above.

4.

Any motions with respect to disposition of the remaining
funds shall be filed on or before April 2, 2019.

Dated this 8th day of March, 2019.
BY THE COURT:

John M. Gerrard
Chief United States District Judge

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4:17-cv-03104-BCB-CRZ Doc # 61 Filed: 04/03/19 Page 1 of 2 - Page ID # 301

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SOUTHLAW, PC,
Plaintiff,

4:17-CV-3104

vs.
ORDER
CHRISTINE L. SWANSON, et al.,
Defendant.
IT IS ORDERED:
1.

The plaintiff's motion to deposit funds into the Court (filing
54) is granted.

2.

The plaintiff shall be paid its expenses and costs in the sum
of $800.

3.

The plaintiff may deposit the remaining $731.17 in its
possession that is at issue with the Clerk of the Court
pursuant to Fed. R. Civ. P. 67.

4.

The Clerk of the Court shall deposit the funds into an
interest-bearing account until further order of the Court.

5.

Upon being notified that the sum has been so deposited, the
Court will dismiss the plaintiff from the matter.

4:17-cv-03104-BCB-CRZ Doc # 61 Filed: 04/03/19 Page 2 of 2 - Page ID # 302

Dated this 3rd day of April, 2019.
BY THE COURT:

John M. Gerrard
Chief United States District Judge

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