Klein v. TD Ameritrade Holding Corporation, et al

Filing 343

ORDER APPOINTING MASTER that having given notice of its intent to appoint a master, having offered the parties an opportunity to be heard, having considered the master's affidavit regarding grounds of disqualification, and having obtained the co nsent of the parties, the Court hereby appoints Kate Rahel as master in this case pursuant to Federal Rule of Civil Procedure 53(a)(1)(A) & (C). The progression order is hereby modified to indicate that, until such time as a new magistrate judge is a ssigned to this case, the parties should contact the master prior to filing a motion to compel, to quash, or for disputed protective order to set a conference for discussing the parties' dispute. Additionally, all requests for change of deadline s or settings or any other matters previously directed to the magistrate judge shall be directed to the master. The parties can contact the master by calling Judge Bataillon's chambers at [phone] or emailing [e-mail] by Senior Judge Joseph F. Bataillon. (TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
GERALD J. KLEIN, on behalf of himself and
all similarly situated; and RODERICK
FORD,
Plaintiffs,
vs.

8:14CV396
ORDER APPOINTING MASTER

TD AMERITRADE HOLDING
CORPORATION, TD AMERITRADE, INC.,
and FREDRIC TOMCZYK,
Defendants.
The Honorable Susan Bazis was recently confirmed to serve as U.S. District Court
Judge, thereby leaving a vacancy for her prior position as Magistrate Judge. Until such
time as this vacancy is filled, there exist pretrial and posttrial matters in the abovecaptioned case that cannot be effectively and timely addressed by an available judge of
the district. Accordingly, the Court has determined it is necessary to appoint a master to
ensure the timely progression of this case. Such appointment shall be of temporary
duration and shall end upon the appointment of a new Magistrate Judge.
Having given notice of its intent to appoint a master, having offered the parties an
opportunity to be heard, having considered the master’s affidavit regarding grounds of
disqualification, and having obtained the consent of the parties, the Court hereby appoints
Kate Rahel as master in this case pursuant to Federal Rule of Civil Procedure 53(a)(1)(A)
& (C). As Rule 53 requires, this Order sets out the master’s duties and dictates how she
is to perform them. The Court reserves the authority to amend this Order at any time after

notice is given and the parties have had an opportunity to be heard. See Fed. R. Civ. P.
53(b)(4).
I.

Master’s Duties and Authority
Rule 53 permits the Court to appoint a master to “perform duties consented to by

the parties” Fed. R. Civ. P. 53(a)(1)(A), and to “address pretrial and posttrial matters that
cannot be effectively and timely addressed by an available district judge or magistrate
judge of the district,” Fed. R. Civ. P. 53(a)(1)(C) The parties having consented to permit
the master to undertake the duties outlined in this order, and there presently being no
available district or magistrate judge in this district to timely address these pretrial matters,
the Court states that the master shall have the authority to do the following:
1. Set deadlines and file orders related to pre-trial case progression.
2. Hold hearings related to case progression including status hearings and
pretrial conferences.
3. Oversee discovery including resolving any discovery-related disputes by filing
an order to which the parties may file an objection with the Court.
4. Conduct a settlement conference with the parties’ consent.
The master is ordered to undertake these duties with all reasonable diligence. See
Fed. R. Civ. P. 53(b)(2). The master shall have the full cooperation of the parties and their
counsel and may take all appropriate measures to perform her assigned duties fairly and
efficiently.
II.

Ex Parte Communications
Rule 53(b)(2)(B) directs the Court to set forth “the circumstances, if any, in which

the master may communicate ex parte with the court or a party.”

Fed. R. Civ. P.

53(b)(2)(B). The master is permitted to communicate ex parte with the court at the
master’s discretion, without providing notice to the parties, in order to discuss logistics
and other appropriate procedural matters. The special master may only communicate
with the parties or attorneys if a representative for all parties is present or if an ex parte
communication is consented to by all parties as in the case of a settlement conference.
III.

Master’s Record and Review of Orders
The Court is required to state “the nature of the materials to be preserved and filed

as the record of the master’s activities.” Fed. R. Civ. P 53(b)(2)(C). The master shall
promptly file any order with the Clerk of the Court for docketing which sets forth deadlines
or which rules on a discovery dispute. The docketing of such orders shall serve as notice
to the parties. The master is not required to preserve or file any other documents related
to her appointment. Objections to the master’s orders shall be made in accordance with
Rule 53(f) except that in the instance of case progression orders and other deadlinesetting orders, the parties shall have 7 days to object. In all non-deadline-related orders,
such as those resolving discovery disputes, the parties shall have 21 days to object. As
set forth in Rule 53(f), the Court will review the master’s factual findings and legal
conclusions de novo but will review procedural matters only for an abuse of discretion.
IV.

Compensation
Pursuant to Rule 53(g) which requires the Court to state the terms of the master’s

compensation, the Court notes that the master has volunteered to undertake these duties
pro bono and thus no compensation will be allocated. These duties shall be in addition
to and separate and apart from any duties the master has in her employment as judicial
law clerk.

V.

Affidavit
Rule 53(b)(3) notes that the Court may enter an Order of appointment “only after

the master has filed an affidavit disclosing whether there is any ground for disqualification
under 28 U.S.C. § 455.” See also Fed. R. Civ P. 53(a)(2) (discussing grounds for
disqualification). The master previously filed her affidavit attesting there are no such
grounds for disqualification.
VI.

Contact Information
The progression order is hereby modified to indicate that, until such time as a new

magistrate judge is assigned to this case, the parties should contact the master prior to
filing a motion to compel, to quash, or for disputed protective order to set a conference
for discussing the parties’ dispute. Additionally, all requests for change of deadlines or
settings or any other matters previously directed to the magistrate judge shall be directed
to the master. The parties can contact the master by calling Judge Bataillon’s chambers
at [phone] or emailing [e-mail].
IT IS SO ORDERED.
Dated this 29th day of April, 2024.
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge