Peter Kiewit Sons', Inc. v. Wall Street Equity Group, Inc. et al

Filing 405

MEMORANDUM AND ORDER denying the Defendant's 404 Motion for Recusal. The pretrial teleconference before Judge Gerrard remains scheduled to be held at 2:00 p.m. on October 9, 2013. The non-jury trial of this case remains set to commence bef ore John M. Gerrard, United States District Judge, in the Special Proceedings Courtroom, Roman L. Hruska Federal Courhouse, 111 South 18th Plaza, Omaha, Nebraska, at 9:00 a.m. on October 11, 2013, or as soon thereafter as the case may be called, for a duration of (1) trial day. Ordered by Magistrate Judge Cheryl R. Zwart. (MKR) Modified on 10/8/2013 to reflect documents mailed and e-mailed to pro se parties(MKR).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PETER KIEWIT SONS', INC.,
Plaintiff,

8:10CV365

vs.
MEMORANDUM AND ORDER
WALL STREET EQUITY GROUP, INC.,
WALL STREET GROUP OF
COMPANIES, INC., SHEPHERD
FRIEDMAN, STEVEN S. WEST,
Defendants.
Defendant West has filed a motion requesting that the undersigned magistrate
judge recuse herself from this case. (Filing No. 404). Reading defendant’s pro se motion
liberally, the defendant claims recusal is necessary because my past rulings evidence a
bias against him.
“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). 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 his 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.)

“[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 367, 370
(8th Cir. 1994).
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. Nothing in this legislation should be read to
warrant the transformation of a litigant's fear that a judge may decide a question against
him into a “reasonable fear” that the judge will not be impartial. 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.
While personal animosity toward a party can be the basis for recusal, such is not
the case here. My decisions have been based on the evidence and arguments presented
for my consideration. Except in extreme circumstances demonstrating favoritism or
antagonism, determinations of bias or partiality cannot be based on opinions, rulings, or
incidents arising out of the course of the proceedings in question.

Liteky v. United

States, 510 U.S. 540, 554 (1994). Judicial rulings alone almost never constitute a valid
basis for a bias or partiality motion. These rulings may provide a proper ground for
appeal, but not for recusal. Opinions formed by the judge on the basis of facts introduced
or events occurring in the course of the current proceedings, or of prior proceedings, do
not constitute a basis for a bias or partiality motion unless they display a deep-seated
favoritism or antagonism that would make fair judgment impossible. Id. at 555.

In

addition, bias or partiality is not established by evidence of “expressions of impatience,

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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.” Id. at 555-54.
Having reflected on this case, I am convinced that my rulings were not based on
any bias and I am not biased for or against any party in this case. The defendant’s motion
to recuse will be denied.
To the extent defendant West’s motion seeks a continuance of trial, the motion is
also denied. West has submitted an additional medical opinion, submitted from his
acupuncture provider, which states that if West is subjected to a one-day trial “there may
be a high chance of Mr. West suffering a severe adverse medical event which could he a
catastrophic cardiovascular event.” (Filing No. 404, at CM/ECF p. 3). This additional
opinion is not a sufficiently certain and reliable opinion from a qualified medical provider
to warrant reversing my prior decision.
Accordingly,
IT IS ORDERED:
1)

Defendant’s motion for recusal, (filing no.404), is denied.

2)

The pretrial teleconference before Judge Gerrard remains scheduled to be
held at 2:00 p.m. on October 9, 2013.

3)

The non-jury trial of this case remains set to commence before John M.
Gerrard, United States District Judge, in the Special Proceedings
Courtroom, Roman L. Hruska Federal Courthouse, 111 South 18th Plaza,
Omaha, Nebraska, at 9:00 a.m. on October 11, 2013, or as soon thereafter
as the case may be called, for a duration of one (1) trial day.

October 8, 2013.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge
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