Burns v. First National Bank of Omaha et al

Filing 30

ORDER - IT IS ORDERED: The Objection to Magistrate Judge Cheryl Zwart's Order, ECF No. 26 , filed by Plaintiff Kevin Burns, is overruled. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party)(TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

KEVIN E. BURNS,
Plaintiff,

8:17CV289

vs.
MEMORANDUM AND ORDER
FIRST NATIONAL BANK OF OMAHA,
Defendant.

This matter is before the Court on the Objection to Magistrate Judge Cheryl
Zwart’s Order, ECF No. 26, filed by Plaintiff Kevin Burns, who is proceeding pro se. For
the reasons stated below, the Objection will be overruled.
BACKGROUND
According to the allegations in the Complaint, ECF No. 1, Burns retained attorney
Wright Walling to handle a family law matter in the State of Minnesota and paid Walling
a $5,250 retainer fee with a Visa credit card, issued by Defendant First National Bank of
Omaha (FNBO).

Burns was dissatisfied with Walling’s representation, and Burns

notified FNBO that he disputed the $5,250 charge to his credit card. FNBO refused
Burns’s demand to issue a chargeback and credit his account. On August 9, 2017,
Burns filed the Complaint, which asserted various state and federal law claims against
Walling and FNBO. On October 17, 2017, the Clerk entered default judgment against
Walling in the amount of $5,250. FNBO filed an Answer, ECF No. 10, to the Complaint
on October 13, 2017.
On April 25, 2018, Magistrate Judge Zwart held a telephonic conference
regarding a discovery dispute between Burns and FNBO’s counsel. Due to technical

difficulties, the conference was held off the record and Burns believes that, based on
Magistrate Judge Zwart’s conduct during the conference, she “deliberately and
intentionally sought to thwart appellate review of her actions and rulings by preventing a
record from being created.”

Pl.’s Mot., ECF No. 22, Page ID 63.

Burns claims

Magistrate Judge Zwart pandered to FNBO’s counsel, engaged in ex parte
communications with FNBO’s counsel, and made false and defamatory statements
about Burns’s wife, Barbara Burns, who attempted to present some of Kevin Burns’s
arguments during the conference. Because Barbara Burns is not a lawyer, Magistrate
Judge Zwart issued an order the following day, precluding Barbara Burns from “directly
contacting [FNBO] and its employees during the pendency of this lawsuit” in a
representative capacity.

ECF No. 20, Page ID 58.

The order also addressed the

discovery issues raised by the parties prior to, and during, the conference. Id.
On April 26, 2018, Burns moved to disqualify Magistrate Judge Zwart under 28
U.S.C. § 455(a). ECF No. 22, Page ID 61. On May 6, 2018, Magistrate Judge Zwart
denied Burns’s motion, ECF No. 23, and he objects to the denial of that motion.
STANDARD OF REVIEW
When a party objects to a magistrate judge’s order on a nondispositive pretrial
matter, a district court may set aside any part of the order shown to be clearly erroneous
or contrary to law. Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A). “A finding is ‘clearly
erroneous’ when although there is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm conviction that a mistake has been
committed.”

Chase v. Comm’r, 926 F.2d 737, 740 (8th Cir. 1991) (quoting United

States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). “An order is contrary to law if it
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‘fails to apply or misapplies relevant statutes, case law, or rules of procedure.’”
Haviland v. Catholic Health Initiatives-Iowa, Corp., 692 F. Supp. 2d 1040, 1043 (S.D.
Iowa 2010) (quoting Knutson v. Blue Cross & Blue Shield of Minn., 254 F.R.D. 553, 556
(D. Minn. 2008)).
DISCUSSION
A “magistrate judge of the United States shall disqualify [herself] in any
proceeding in which [her] impartiality might reasonably be questioned.” 28 U.S.C. §
455(a). “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.” In re Steward, 828 F.3d 672, 682 (8th Cir. 2016). “[A]
party is not entitled to recusal merely because a judge is ‘exceedingly ill disposed’
toward them, where the judge’s ‘knowledge and the opinion it produced were properly
and necessarily acquired in the course of the proceedings . . . .’” Id. (quoting Liteky v.
United States, 510 U.S. 540, 551 (1994)).
Burns’s suspicion that Magistrate Judge Zwart never experienced technical
difficulties during the discovery conference and intentionally held the conference off the
record for an improper purpose does not satisfy his “substantial burden of proving” she
is not impartial. In re Steward, 828 F.3d at 682. His suspicion is not based on evidence
but on his subjective belief that Magistrate Judge Zwart’s conduct during the conference
indicates she intended to “thwart” appellate review. See id. (affirming district court’s
denial of motion to recuse where movant “supplied no evidence from which [the Eighth
Circuit] could conclude that [the district judge] was not impartial”). Thus, the fact that
the conference was held off the record is not a basis for recusal.
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Nor is Magistrate Judge Zwart’s order precluding Burns’s wife, Barbara Burns,
from contacting FNBO in her capacity as Burns’s representative a basis for recusal.
Barbara Burns is not a lawyer and is, therefore, not authorized to practice law or
represent her husband in this matter. NEGenR. 1.7(d). Nevertheless, Burns argues a
magistrate judge lacks the authority to issue this particular order because it was
injunctive in nature.

See 28 U.S.C. § 636(b)(1)(A) (A magistrate judge may not

“determine . . . a motion for injunctive relief.”). However, precluding Barbara Burns from
representing her husband in connection with this case was not a grant of “injunctive
relief” for purposes of 28 U.S.C. § 636(b)(1)(A). Cf. Jones ex rel. Jones v. Corr. Med.
Servs., Inc., 401 F.3d 950, 951 (8th Cir. 2005) (“A Federal court has inherent power to
oversee attorneys who appear before it.”).

The order was, therefore, neither an

improper grant of injunctive relief nor a basis for recusal.
Burns has failed to demonstrate that any part of Magistrate Judge Zwart’s Order,
ECF No. 23, was clearly erroneous or contrary to law.
Accordingly,
IT IS ORDERED: The Objection to Magistrate Judge Cheryl Zwart’s Order, ECF
No. 26, filed by Plaintiff Kevin Burns, is overruled.
Dated this 7th day of June, 2018.

BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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