Burns v. First National Bank of Omaha et al

Filing 23

ORDER denying 22 Motion to Disqualify. Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KEVIN E. BURNS,
8:17CV289

Plaintiff,
vs.

MEMORANDUM AND ORDER
FIRST NATIONAL BANK OF OMAHA,
Defendant.
Kevin Burns has moved for my disqualification from this case. (Filing No.
22). For the reasons stated below, the motion will be denied.

ANALYSIS
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.) “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). Disqualification for lack of impartiality must have a reasonable basis.
While litigants should not have to face a judge where there is a reasonable question
of impartiality, they are not entitled to a judge of their own choice.

Plaintiff argues I 1) refused to record the April 24, 2018 hearing by falsely
stating the recording equipment was not working; 2) failed to prepare for the
hearing; 3) failed to rule on the discovery issues presented by Plaintiff during that
hearing; 4) pandered to defense counsel; 5) exhibited hostility and bias against
Plaintiff’s wife, Barbara Burns, and impermissibly entered an injunction against
her by stating Ms. Burns is not an attorney and cannot represent Kevin Burns in
this litigation, and in her capacity as Plaintiff’s account manager, she cannot
contact defendant directly; and 6) engaged in ex parte conversations with
defense counsel prior to the hearing.
The recording equipment I typically use for civil discovery hearings is
located in my chambers. The April 24, 2018 hearing at issue was my first hearing
that day, and when I tried to initiate the recording equipment, it failed to operate. I
was unable to quickly resolve the problem myself. The court’s IT personnel were
called to my chambers immediately and were present during the hearing,
attempting to fix the equipment. To date, the recording problem intermittently
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reoccurs and the source of the problem has not been identified. Simply stated,
there is no truth to Plaintiff’s claim that I refused to record the hearing and lied
about the reason it was not recorded.
Pre-motion discovery hearings are convened in the hopes of limiting, if not
fully resolving, discovery battles through court-assisted discussion. There is no
guarantee that all issues raised will be ruled on during those hearings. In
preparation for the April 24, 2018, I reviewed Plaintiff’s submissions. During the
hearing, I asked for Defendant’s response. Defendant claimed it had emailed all
the audio recordings Plaintiff requested, but Plaintiff claimed he did not receive
all those emails. As I stated during the hearing, both sides may be correct; that
is, audio recordings can produce large data files and email server filters may
have stopped the delivery of emails sent by defense counsel which contained
large recording attachments. So I ordered defense counsel to copy the
recordings he emailed to a flash drive and mail the flash drive to Plaintiff—a
measure which partially resolved the Plaintiff’s discovery disputes without the
necessity of formal briefing. As such, the discovery hearing did serve the purpose
of limiting the parties’ disputes, and as to the unresolved issues, I requested a
formal motion and briefing so I could fully understand the parties’ arguments
before entering a ruling.
It became evident during the hearing that Plaintiff and defense counsel
have difficulty communicating. I therefore instructed the parties on steps they
must take to open the lines of communication while nonetheless prohibiting
Plaintiff’s direct communication with Defendant, a represented party, concerning
this litigation. I also clarified that Plaintiff cannot circumvent the prohibition of
direct contact with Defendant by having his wife speak with Defendant on
Plaintiff’s behalf. Those communication requirements were re-stated in my posthearing written order. (Filing No. 20).

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During the April 24, 2018 hearing, Plaintiff wanted his wife to argue some
of the discovery dispute issues. After confirming that Barbara Burns is not a
licensed attorney, I entered an order stating she cannot represent Plaintiff in this
litigation. (Filing No. 20). That order is not an injunction based on the merits of
the case, but rather an exercise of the court’s inherent authority to manage the
conduct of those before it, including those engaged in the unauthorized practice
of law. The undersigned magistrate judge has the authority to enter such orders.
Affeldt v. Carr, 628 F. Supp. 1097, 1101 (N.D. Ohio 1985) (holding a magistrate
judge has authority to enter orders disqualifying counsel and issuing gag orders;
pretrial matters which are not dispositive). While Barbara Burns was allowed to
represent Kevin Burns as his “de facto attorney” at the lower court level of a
Minnesota tax court proceeding, Kevin E. Burns, Barbara R. Burns, Petitioners,
v. Commissioner of Revenue, 2010 WL 9545611 (Minn.), she is barred from
doing so in this forum. Jones ex rel. Jones v. Corr. Med. Servs., Inc., 401 F.3d
950, 952 (8th Cir. 2005).
In support of his claim that I am biased and pander to the defendant,
Plaintiff states “Barbara Burns ha[s] never been precluded from practicing any
profession, including the law,” (Filing No. 22, at CM/ECF p. 3), and any claim by
me to the contrary is baseless gossip and defamatory. However, due to her
multiple and frivolous filings, Barbara Burns has been barred from filing pro se
cases in a Minnesota court without prior approval of the Chief Judge, and she
was thereafter fined for attempting to circumvent that order by naming others as
plaintiffs (including her husband) to obscure her own involvement in cases. Burns
v. Ungerman, No. A04-290, 2005 WL 468304 (Minn. Ct. App. Mar. 1, 2005).
Plaintiff claims I had ex parte conversations with defense counsel. This
statement is untrue. I have never talked to defense counsel without the Plaintiff
also present on the call.

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I am not biased, for or against, any of the parties to this case. And “a
reasonable observer who is informed of all the surrounding facts and circumstances”
as set forth in this memorandum and order would not conclude that I am unable to
fairly consider and rule on the issues.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for recusal, (Filing No. 22), is denied.

May 6, 2018.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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