Millard Gutter Company v. State Farm Fire and Casualty Company
MEMORANDUM AND ORDER - Michael F. Kinney is appointed Special Master for the purpose of assisting the court in the resolution and management of this case. Mr. Kinney shall report to the court every 45 days and shall ultimately prepare findings and r ecommendations for submission to the court within six months of the date of this order. Upon receipt of this Order, and after conferring with the court, the Special Master shall set a time and place for a first meeting of counsel for the parties to be held within 21 days of the date of this Order. Ordered by Senior Judge Joseph F. Bataillon. (Copy mailed to Mr. Kinney and PACER Service Center as directed, copy to Operations Administrator)(TCL)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MILLARD GUTTER COMPANY, a
MEMORANDUM AND ORDER
STATE FARM FIRE AND CASUALTY
This matter is before the court sua sponte. This is an action for damages for
alleged breach of contract and bad faith denial of insurance claims in connection with
The plaintiff has assignments of roof-repair claims from a number of the
defendant's insureds. On October 7, 2016, the m agistrate judge held a hearing on the
issue of appointment of a special master.
The court has been informed that the
parties are amenable to the appointment of Michael F. Kinney as special master although
there is not agreement concerning his compensation by both parties.
Pursuant to Rules 16, 26, and 53 of the Federal Rules of Civil Procedure and the
inherent authority of the court to supervise and administer pending cases, the court
finds the appointment of a special master will aid the resolution of this case and the
formulation of a fair and efficient plan for the management of this case, and potentially
the resolution of related cases.1
Several cases involving the same issue are presently pending in this court. See Valley Boys, Inc.
v. Assurant, Inc., Case No. 15-cv-149; Valley Boys, Inc. v. Western Iowa Mut. Ins. Ass'n, Case No. 15-cv154; Valley Boys, Inc. v. Liberty Mutual Insurance Company, Case No. 15-cv-163; Valley Boys, Inc.
v. Safeco Insurance, Case No. 15-cv-164; and Valley Boys, Inc. v. Allstate Ins. Co., Case No. 14-cv3148.
The court finds that the special master shall bill the parties monthly and that his
fees shall be paid equally by the defendant and the plaintiff. At the conclusion of the case
either party may request reapportionment of the special master’s fees based on the
case’s ultimate resolution.
The court f u r t h e r finds Mr. Kinney should be granted an exemption from
fees imposed by the Judicial Conference’s Electronic Public Access fee schedule with
respect to the electronic case files of this court that are available through the
The record shows Mr. Kinney has filed an affidavit, pursuant to Fed. R. Civ. P.
53(b)(3)(A), disclosing that he is not aware of any grounds that would result in
disqualification under 28 U.S.C. § 455.
See F il in g No . 3 6 .
The court has
considered Michael Kinney's qualifications to serve as special master and finds him highly
Nothing in this order abrogates the litigants' rights to a trial by jury or appellate
IT IS ORDERED:
Michael F. Kinney is appointed Special Master for the purpose of assisting
the court in the resolution and management of this case;
The Special Master shall bill the parties monthly and his fees shall be timely
paid divided equally between the defendant and the plaintiff.
Subject to any specifications or limitations stated in this Order, the Special
Master shall have all the rights, powers, and duties as provided for a master under Rule
53 of the Federal Rules of Civil Procedure;
The Special Master may conduct meetings with counsel and parties jointly
or ex parte.
Special Master Michael F. Kinney is instructed to:
examine the pleadings, briefs, and evidence submitted by the
determine whether and to what extent there are any pre a ssignment
determine the best way to approach the damages from a
categorical standpoint, i.e., to determine whether certain categories of
claims, materials, and scope of work are common to the individual
assignments, in order to expeditiously resolve property loss issues; and
determine an expeditious progression of discovery and pursue
Mr. Kinney is authorized to look into any other matters that may arise and
may employ a construction expert and a paralegal if the Special Master reasonably
deems them necessary to assist the Special Master in accordance with this Order.
Such persons shall be under the Special Master's supervision and control and the
Special Master shall take appropriate action to ensure that these persons observe the
terms of this Order and preserve the confidentiality of matters submitted to the Special
Master for review. When identified, the expert will be granted judicial immunity from civil
liability and from compelled testimony.
Mr. Kinney is authorized to utilize the services of one of Judge Joseph
Bataillon’s law clerks for research or other reasonably necessary services;
Mr. Kinney shall bill the parties directly for his services;
Mr. Kinney shall report to the court every 45 days and shall ultimately
prepare findings and recommendations for submission to the court within six months of
the date of this order. Pursuant to Fed. R. Civ. P. 53 (f), the parties will be afforded
notice and an opportunity to be heard before the court takes action on the Special
Master's order, report or recommendations.
The Clerk of Court is directed to send this order to:
Michael F. Kinney
Cassem, Tierney, Adams, Gotch & Douglas
9290 West Dodge Rd., Suite 302
Omaha NE 68114
The Clerk of Court shall establish a PACER login and password for Mr.
Kinney's use during the course of his appointment. This exemption is valid for the
duration of this case and during any appeal, but the court may revoke the exemption at
any time. Special Master Kinney agrees that he will not transfer or sell for profit the
data obtained as the result of a fee exemption.
The Clerk of Court is directed to send a copy of this order to the PACER
Service Center in San Antonio, Texas, so that Mr. Kinney is not billed for PACER fees
incurred during the course of his appointment.
Upon receipt of this Order, and after conferring with the court, the Special
Master shall set a time and place for a first meeting of counsel for the parties to be held
within 21 days of the date of this Order.
The Special Master shall perform such additional duties with respect to
this case as the court may direct.
Dated this 22nd day of December, 2016.
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge
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